By Oliver Omoredia
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INTRODUCTION
In the recent case of Incorporated Trustees of Nigerian Bar Association v. Charles Ezeagu [2024] 4 NWLR (Pt. 1927) 126, for the mere act of managing a client’s property, the Respondent was found to have conducted himself in an infamous manner contrary to Rules 7(2) of Rules of Professional Conduct for Legal Practitioners 2007 and the Legal Practitioners’ Disciplinary Committee directed that the Respondent CHARLES CHIBUIKE EZEAGU, Esq be suspended for 2 years from the Roll of Legal Practitioners.
With intermittent commentaries, this write-up reviews the facts of the case and critiques the sweeping finding of the Legal Practitioners’ Disciplinary Committee that lawyers cannot act estate agents, property managers or Commission Agents.
FACTS:
The complainant retained the services of the respondent as a legal practitioner to manage the complainant’s three properties and to collect the rent on same from 2006 to 2015. The complainant alleged that the respondent refused to account to the complainant for the income from the properties entrusted to his care as well as misappropriated the rent monies amounting to N16,000,000 (Sixteen Million Naira). As a result of which the complainant filed a report with the Nigerian Police which led to the arrest and subsequent prosecution of the respondent of a three-count complaint. The respondent however denied the allegation of misappropriation of funds and averred that he was innocent of all allegations of impropriety.
A petition was brought by the Complainant against the Respondent before the Legal Practitioners’ Disciplinary Committee. The Complaint read as follows:
- That you Charles Ezeagu Esq., a Legal Practitioner, whose name is on the Roll of Legal Practitioners in Nigeria, adult, male and practicing in Abuja, sometime in 2015 in your capacity as a Legal Practitioner collected rents amounting to about N16,000,000.00 (Sixteen Million Naira) in respect of three properties on behalf of your client Sir. Ifeanyi Ekwueme and failed to remit same or to render accounts to your client and thereby conducted yourself in an infamous manner contrary to Rules 1, 18(2), 23(2), and 55 of the Rules of the Professional Conduct for Legal Practitioners and punishable under S. 12(1) of the Legal Practitioners Act, Cap. L.11, LFN,2004.
- That you Charles Ezeagu Practitioners in Nigeria, adult, male and practicing in Abuja, sometime in 2015 in your capacity as a Legal Practitioner, misappropriated and converted your client (Sir Ifeanyi Ekwueme) funds amounting to N16,000,000 (Sixteen Million Naira) for your personal use and thereby conducted yourself in an infamous manner contrary to Rule 23(2) of the Rules of Professional Conduct for Legal Practitioners and punishable under S. 12(1) of the Legal Practitioners Act, Cap. L.11, LFN, 2004.
- That you Charles Ezeagu Esq, a Legal Practitioner, whose name is on the Roll of Legal Practitioners in Nigeria, adult, male and practicing in Abuja, sometime in 2015 in your capacity as a legal practitioner managed your client’s property (Sir Ifeanyi Ekwueme)for which you collected ten percent (10%)as fees for managing the property as a legal practitioner thereby conducted yourself in an infamous manner contrary to Rules 7(2)and punishable under S. 12(1) of the Legal(c)Practitioners Act, Cap. L.11, LFN, 2004.
The Respondent pleaded “NOT LIABLE” on all three counts. Thereafter the matter proceeded to hearing and after the conclusion of trial, the argument of the respondent in summary was:
- On the issue of client/lawyer relationship – That the complainant had produced no evidence to show that he had instructed the respondent as a lawyer and the respondent reiterated his position that he had merely assisted the complainant as a brother and kinsman. The respondent submitted that there must be evidence of payment of deposit of professional fee or part thereof and a receipt of payment of fees to the alleged from the lawyer to establish lawyer-client relationship.
- On the allegation by the complainant that the respondent was retained as an agent to manage his landed property, the respondent submitted that it is mandatory under section 2 of the Recovery of Premises Act that an agent, described in that Act as “… any person usually employed by the landlord in the letting of premises or in collection of the rents thereof or specially authorized to act in a particular manner by writing under the hand of the landlord.”; must be instructed by an instrument in writing and in this case, the complainant did not tender any authority in writing or adduce other evidence in support of his claim that he had appointed the respondent as an agent. The respondent therefore urged the Committee to discountenance the complainant’s submissions and dismiss the allegations against him as none had been proven.
- The parties are aligned on one fact only, namely, – The complainant engaged the respondent to manage his properties from 2006 to 2015.
COMMENTARY:
In a way, the Respondent’s defence/line of argument that he “was assisting the complainant as a brother and not in his professional capacity as a legal practitioner” was his undoing, as it not only derailed the empirical lenses of the Committee, it was also an argument he could not sustain. The argument had no bearing on the real issue which, in my view, was whether he collected rent on the client’s property and misappropriated or failed to account for same. To put it simply, it did not matter whether he acted as a legal practitioner or not, but sadly that issue became the bane of the entire decision.
FINDINGS OF THE COMMITTEE:
On the argument of the Respondent on absence of lawyer-client relationship the Committee found that:
“During cross-examination, the respondent accepted that exhibit P37 was his statement to the police and in that statement, he confirmed that he “gave an answer to the police that I was entitled to 10% of all rent collected by me and to remit 90%to the primary complainant. This statement to the police, a handwritten statement, presumably in the respondent’s own hand in view of his acceptance under cross examination that the statement marked exhibit P37 is his statement to the police, shows that the respondent narrated as follows, “Meanwhile, in my house I saw a letter left for me by the complainant through my neighbor. I read the letter and saw that he has debriefed me from managing his house and further requested that I should forward my statements of account to him. So, when I called him yesterday, I acknowledged receipt of the letter and promised him to give him the full and detailed reply and accounts.”
The Committee notes the use of a very technical word only capable of one meaning in the context employed in the respondent’s statement, namely, “DEBRIEF”…the clear and logical explanation of the word as employed in the statement is in relation to an instruction to a lawyer, i.e. a brief, and in that context, when instructions are withdrawn, the lawyer is debriefed. The complainant did not employ this technical word in his letter to the respondent, it is the respondent’s own interpretation of the content of the complainant’s letter. Thus, it is crystal clear to this Committee that contrary to his vehement denial of a client/lawyer relationship, the respondent was fully cognizant of the fact that he had been briefed by the complainant in a professional capacity to manage his properties for him.”
The committee therefore found that it is not persuaded that evidence of payment of professional fees is an essential requirement for establishing a client/lawyer relationship. Whilst payment of professional fees could serve as an additional element in proving such a relationship, it cannot be deemed a sine qua non for establishing a relationship as it is a longstanding tradition of this profession to serve clients on a pro bono basis.
In conclusion the Committee found that there was a lawyer-client relationship.
THE ELEPHANT IN THE ROOM
After the above finding that a lawyer-client relationship existed, the Committee made a far-reaching decision when it found as follows:
The next question flowing from the above, is whether the service provided by the respondent can properly and legitimately be provided by a lawyer in the normal course of business. The short answer is, NO. Lawyers are not estate agents and property managers neither can they act as Commission Agents. This is a service incompatible with our profession and prohibited as a result. Any lawyer engaging in incompatible and prohibited activity in the name of legal services is certainly guilty of infamous conduct and deserving of sanction for bringing the profession into disrepute. The respondent having accepted a ‘brief’ as property manager, is therefore guilty of infamous conduct and deserving of sanction.
Interestingly, the Committee held that there was insufficient evidence to convict the Respondent for failure to remit the amounts or misappropriation of the rent. According to the Committee:
“On counts 1 and 2 of the complaint that was filed, the Committee finds that there is insufficient evidence to support the allegations therein, thus, the respondent is not culpable and is discharged on both counts.”
However, for the mere act of managing the client’s property the Respondent was found to have conducted himself in an infamous manner contrary to Rules 7(2) of Rules of Professional Conduct for Legal Practitioners 2007 and it was directed that the Respondent CHARLES CHIBUIKE EZEAGU, Esq be suspended for 2 years from the Roll of Legal Practitioners, and he is hereby suspended.
COMMENTARY:
It is necessary at this point to reproduce the provision of Rules 7(2) of Rules of Professional Conduct for Legal Practitioners 2007 pursuant to which the Respondent was convicted. The Rule Provides that:
(2) A lawyer shall not practice as a legal practitioner while personally engaged in- (a) the business of buying and selling commodities.
(b) the business of a commission agent;
(c) Such other trade or business which the Bar Council may from time to time declare to be incompatible with practice as a lawyer or as tending to undermine the high standing of the profession.
Although, like the Committee in the case under review, many Lawyers seem to misconstrue the purport of the above Rule, there is a judicial pronouncement that has given an enlarged understanding to the intendment of the Rule. I have earlier written on the interpretation of this Rule and an earlier misapplication of the Rule by the LPDC in a write-up published here: https://thenigerialawyer.com/lawyers-are-not-restricted-from-selling-land-or-acting-as-agents-by-oliver-omoredia/ .
Unfortunately, the Committee in holding the Respondent liable under Rule 7 (2) of the RPC made no recourse to any judicial authorities for its interpretation of that Rule. However, for the purpose of this critique, I will.
In Ukah & Ors v. Onyia & Ors (2016) LPELR-40025(CA), the Court of Appeal considered Rule 7(2) of the RPC and gave a robust and binding view to the provision. According to the appellate Court:
” Rule 7(2)(b) of the Rules of Professional Conduct for Legal Practitioners, 2007, therefore forbids a lawyer from practicing as a legal practitioner while personally engaged in the business of a commission agent. A proper dissection of this Rule shows that what is forbidden is practicing as a lawyer, while engaged in the business of a commission agent. In other words, the active part of the provision/prohibition is practice as a legal practitioner. The provision does not forbid a legal practitioner from engaging in the business of a commission agent. Rather, it forbids a legal practitioner engaged in the business of commissioned agent from practicing as a legal practitioner while so engaged. In construing this provision, it is pertinent to note that the qualification of a person as a legal practitioner is distinct from practice as a legal practitioner while the former borders on the mere appellation of one as a lawyer upon being called to the Nigerian Bar, the latter is a question of fact and evidence.” Per OGUNWUMIJU, J.C.A.
From the above judicial authority, a lawyer in property transaction cannot have double portion. He cannot act as commissioned agent and as legal practitioner in the same property transaction. In the case under review, the culpability of the Respondent ought not to have been concluded solely on the mere evidence that he was Legal Practitioner and accepted a brief to manage property on behalf of the property owner. His culpability could only have been conclusively established under Rule 7 (2)(b) if he collected commission as Agent and also collected fees as Legal Practitioner for the property. From the evidence on record, the Respondent acted only as Legal Practitioner not as estate agent.
A Real Estate Agent is defined in the Blacks Law Dictionary 2nd Edition as
“Any person whose business it is to sell, or offer for sale, real estate for others, or to rent houses, stores, or other buildings, or real estate, or to collect rent for others”.
This definition of an “Agent” is similar to the definition under Section 47 of the Tenancy Law of Lagos State 2007 which defines “Agent” as:
“any person usually employed by the landlord in the letting or leasing of the premises or in the collecting of the rents, or a person specially authorised to act in a particular manner by writing under the hand of the landlord”.
Under the Lagos State Law “Landlord” in relation to any premises is defined to mean
“the person entitled to the immediate reversion of the premises or if the property is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and includes – (a) the attorney, solicitor, agent or caretaker of any such landlord (b) any person receiving (whether in his own right or as an attorney or agent) any rent from any person for the occupation of any premises in respect of which he claims a right to receive the same;
Using the Lagos Tenancy Law as a clear example of why it the LPDC’s finding is unsafe, it is apparent from the definition of landlord that it includes attorney, solicitor, agents of the landlord or any person receiving rent from any person in occupation. Therefore, the Law acknowledges that when a Lawyer acts as Landlord in the sense of collecting rent he may be acting as Landlord, as Agent or as a Lawyer on the Landlord’s behalf. Hence, the mere acceptance of a brief to manage property does not immediately convert the lawyer to an Estate Agent. If he charges professional Fees as a Lawyer then his role is that of Attorney, if he merely charges commission then he acts as Estate Agent. Indeed, he can validly so act in any of each capacity, provided he does not combine both in the same transaction i.e. collecting commission as agent whilst collecting fees as legal practitioner.
In summary, merely being a legal practitioner did not bring the Respondent within the restriction of Rule 7(2)(b) of the RPC and the LPDC erred in so finding.
At the risk of belaboring the point, the fact that a person is a Legal Practitioner should not, ispo facto, rob him of locus to represent a client in the management of a property as Landlord’s Attorney, as Lawyer for the Property or even as Agent. There is no person more qualified to play this role for a property owner than a Lawyer. The concern of the Rule arises only if the lawyer is found to combine more than one responsibility in the transaction, fail to render account, or misappropriates the funds received on the Property Owner’s behalf – and these aspects where not proven in the case before the Committee.
IN CONCLUSION
It is therefore my humble opinion that the decision in Incorporated Trustees of Nigerian Bar Association v. Charles Ezeagu [2024] 4 NWLR (Pt. 1927) 126 was wrongly entered and cannot be sustained by the available judicial authority on the point. We hope that the finding and direction of the Committee is appealed against and that our Courts take this case as an opportunity to give clarity to the unsettling conclusion of the Committee by setting it aside.
We also hope that the LPDC, moving forward, considers all available authorities and gives us some judicial basis for its decision before imposing sanction on lawyers – as for discipline to thrive there must be justice!
Oliver Omoredia Esq., oliveromoredia@gmail.com
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