Lawyers in trouble

 Two private practice lawyers Sylvester Ayuba James and Likhwa Mussa risk being struck off the legal practitioners’ roll after the Malawi Law Society (MLS) Disciplinary Committee found them guilty of separately embezzling clients’ money.

In a different case, the High Court has dismissed with costs an application by another private lawyer Tamando Chokotho restraining FDH Bank plc from selling his property in Blantyre.

According to the committee’s findings, Ayuba James embezzled money for his client Billy Matitha Gama contrary to Section 89(2)(m) of the Legal Education and Legal Practitioners Act (Lelpa).

Details of the matter are that Ayuba James was engaged by Gama to represent him in a civil matter after one of his suppliers sued him.

Gama was advised by the lawyer to deposit K60 million into his account while waiting for reconciliation with the supplier.

In the process, the client is said to have withdrawn K29 million through the lawyer but after sometime Gama was told of a court ruling for him to pay K46 million.

“He [Gama] was further told to write a cheque to Kawelo Lawyers, the supplier’s lawyers. It is at this point that he asked you to deposit the balance to his bank account. Mr Gama alleges that you told him that you had made a mistake and deposited K11 000 000.00 to Kawelo Lawyers instead of his account.

“From the above account, it is alleged that you still had K20 000 000.00 from the K60 000 000.00 and this was meant for Nail Teck (K5 900 000.00), Aluminum Plus (K7 300 000.00) and the balance for himself. However, you did not pay them,” reads a report of the findings of the committee.

The committee then charged Ayuba James with six counts including failure to open a client account contrary to Section 36(1) Lelpa, embezzlement contrary to Section 89(2)(m) of the LELPA and engaging in personal or professional conduct that brings discredit to the profession contrary to Chapter 3 Rule I of the Code of Ethics.

After the disciplinary hearing, the committee resolved to recommend to the Chief Justice that he be struck off the roll of legal practitioners in accordance with Section 96(l)(a) of Lelpa.

It also resolved to advise the Director of Public Prosecutions (DPP) to institute criminal proceedings against him for embezzling a client’s money in accordance with Section 96(l)(e) of the Lelpa.

Finally, Ayuba James has been ordered to refund K11.3 million to Gama and pay K240 000 to MLS being costs of the disciplinary proceedings in accordance with Section 96(2)(a) of the Lelpa.

In an interview yesterday, MLS honorary secretary Gabriel Chembezi confirmed the development saying “unless otherwise dealt with by the courts, the processes prescribed by the MLS Disciplinary Committee in the determination will be followed.”

On the other hand, Mussa is alleged to have received K37 million and K7.12 million on behalf of Plem Construction Limited and CMACGM Shipping Agency Limited, respectively, which he never remitted.

The MLS Disciplinary Committee found that Mussa engaged in unethical and unprofessional behaviour and found him guilty of misconduct.

His case was referred to the Chief Justice for disbarment and to the DPP to institute criminal prosecution. The Chief Justice is yet to give his ruling on the matter.

The disciplinary committee further ordered Mussa to pay back K71.3 million, which includes interest, to Plem Construction and K232 992 as a fine to the MLS.

Further, the lawyer was ordered to pay K9.16 million, plus interest, to CMACGM Shipping Agency Limited and also K232 992 as a fine to MLS.

Meanwhile, High Court Judge Jabbar Alide has dismissed with costs an application by Chokotho which restrained FDH Bank plc from selling his property at K180 million which he argued was below the reserve price of K215 million.

Chokotho obtained a mortgage facility with the bank amounting to K144 million for purposes of procuring the property on title Number LK3319 in Blantyre.

However, Chokotho is alleged to have defaulted repayment of the loan resulting in the bank issuing a notice to sell the asset to recover the money.

According to court documents, attempts to sell the property through public auction failed to draw customers beyond the reserve price.

This prompted FDH Bank to get consent for a waiver from the Ministry of Lands to put the property on the market at K180 million, a development that did not please the lawyer who obtained a court injunction prohibiting the transaction.

But in his ruling dated August 8 2023, Alide found Chokotho’s action had no legal merit and “in any case has not raised any triable issues”.

“Further, it has brought remedies that are strange and not available under the applicable law. All I can see in this matter is the claimant’s attempt to coin some confusion with a view of creating an impression that there is some controversy worth the court’s intervention,” reads the judgement.

The judge further observed that there was no legitimate controversy in the matter and that the cause of action hinged on flimsy and untenable foundation “bearing in mind the factual context and applicable law in respect to the issues raised herein.