NBA v. KOKU (2006) 4 LRLR Vol 21 Page 312

NBA v. KOKU 

Citation

(2006) 4 LRLR Vol 21 Page 312

Alternative Citation

(2006) ALL FWLR (Pt. 334) 1928

NIGERIAN BAR ASSOCIATION……………………….               APPELLANT

V.

A. O. KOKU ESQ………………………………………….       RESPONDENT

FACTS

The respondent was appointed as one of the three trustees to the estate of G.W.E Nicol on an annuity of N5,000 (five thousand naira). The deceased owned amongst his properties making up his estate, a company called Apalagada Investments Limited, which he bequeathed to his children after his death.

The executors to the estate of the deceased resolved that the respondent’s law firm be appointed solicitors to the estate. This decision was represented to the beneficiaries for ratification, they ratified it. The respondent collected the sum of E20,000 (twenty thousand pounds sterling) as professional fees for legal services rendered by his law firm to the estate of the deceased. The respondent as solicitor to the estate also gave the go ahead for the winding-up of Apalagada Investments Limited, in contravention of the deceased’s last wishes that same be operational until after 20 years following his death; when his children can determine its existence if they so wish.

The deceased’s son, Rowland B. Nicol based on the facts of the case wrote a petition to the Legal Practitioners Disciplinary Committee deploring the misrepresentation and mismanagement of his father’s estate. The Committee on consideration of the petition and reply of the respondent held that a prima facie case of misconduct was established against the respondent. A formal complaint was eventually filed against the respondent.

HELD

On impropriety of an executor appointing self as solicitor to a deceased’s estate – The Legal Practitioners Disciplinary Committee (Holden at Abuja) stated that Rule 49(a) and (b) makes provision for this, and as a trustee, the respondent should have appreciated that he was not entitled to any payment at law or in equity for personal trouble and loss of time in the execution of the duties of his office. Thus, in regard to work qua legal practitioner, he ought to realize that he was in an awkward position of having no contract with himself for remuneration.

On legal standing of a solicitor; Executor on remuneration for services rendered – The Legal Practitioners Disciplinary Committee stated that the solicitor – executor stands in the same position as a broker, commission agent, or the like, who may be appointed trustee or executor, and who may transact some of the business relating to the estate which requires the assistance of either a broker, commission agent, or the like; and if the executor or trustee transacts business of that kind for the estate he is allowed to costs out of his pocket (expenditure). Therefore, a solicitor as a partner cannot receive remuneration for transacting legal business on behalf of a trust. Where he wants to be remunerated, he must ensure that a charging clause is included in the trust instrument.

On whom burden of proof lies and how proved – The Legal Practitioners Disciplinary Committee stated that the onus is on the party who asserts the existence of a fact to prove same. That is, he who asserts must prove, and the only way to do this is by evidence.

On legal punishment meted to legal practitioner found guilty of unprofessional conduct for acting as executor and solicitor to the estate of a deceased and also causing the early winding-up of the deceased company against his last wishes – The Legal Practitioners Disciplinary Committee stated that the respondent is guilty of unprofessional conduct which is incompatible with the status of a legal practitioner for acting as an executor in respect of the Will of Mr. George W. E. Nicol (late) as well as appointing his legal firm; Messrs. A. O. Koku & Co. as solicitor to the estate left by the deceased; and he is also guilty of unprofessional conduct by causing and encouraging the early winding-up of Apalaga Investment Ltd, a company belonging to the deceased which appear to be against the deceased’s wishes, therefore, contrary to section 11 of the Legal Practitioners Act.

The Legal Practitioners Disciplinary Committee held that the respondent is guilty and for this reason, suspended for three years from engaging in legal practice in Nigeria. 

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