The Undertaking You Signed on Friday
You acted for Chief Ade, the purchaser of a property at Ikoyi. The seller's solicitors, Messrs Okoro & Co., released the title documents to you on your written undertaking to pay them N45m from the purchase price 'within ten working days of receipt of the funds and in any event not later than 30 September'. The funds arrived in your client account on 20 September. On 26 September Chief Ade instructed you by WhatsApp to 'hold the money, there is a problem with the survey', and then to pay N30m to a company owed money by his brother. On 28 September Okoro & Co. called to remind you that the deadline is 30 September. Chief Ade has paid your fee of N3m in full. The seller has not yet executed the deed of assignment, and the survey shows that part of the property encroaches on a government right of way.
1. Must you pay Okoro & Co. by 30 September? Explain the nature of an undertaking.
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Yes - unless Okoro & Co. agree to release you or a court orders otherwise.
An undertaking is a personal promise by the lawyer, not by the client. It is binding in honour and professionally; breach is professional misconduct and may also found a civil claim by the recipient. The lawyer cannot defend a breach by saying 'my client told me not to pay'. That is precisely the situation the undertaking is designed to prevent.
The condition was receipt of the funds, which occurred on 20 September. Even if ten working days would have run beyond 30 September, the undertaking caps payment at 30 September. The deadline has arrived.
You must pay from the client funds held. If you have applied those funds elsewhere, you must make good the shortfall from your own resources - the client cannot be made to bear the consequences of your breach.
Conclusion. Pay by 30 September, or obtain a written extension from Okoro & Co. before the deadline.
2. What are your options if Chief Ade maintains his instruction to hold or redirect the money?
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Explain, then comply. Write to Chief Ade explaining that the undertaking binds you personally, that his instruction cannot override it, and that you will be in breach if you do not pay. If he maintains the instruction, you must still pay; his instruction does not suspend your professional obligation.
Conflict. Once he insists, your own interest in avoiding breach conflicts with his instruction. You may decline to act further for him - with leave of the court if proceedings are on foot - but the undertaking survives your withdrawal. You cannot prefer a later client instruction to your own promise.
Disputed entitlement. If there is a genuine dispute about who is entitled to the money, apply to court for directions or pay into court; do not simply sit on the funds. Notify your professional indemnity insurer if a claim is threatened.
Records. Keep the WhatsApp instructions, your replies and the payment record. They will be needed if the client later complains.
3. Does the survey and encroachment problem change your obligation?
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Not on these facts. The undertaking was to pay on receipt of the funds; it was not expressly conditional on title being good, on completion, or on the deed being executed. Title issues are a matter between buyer and seller.
Chief Ade's remedy is a claim against the seller - specific performance, abatement of the price, or rescission and refund - not a right to make you break your undertaking. If he wants to withhold money, he must obtain the seller's agreement or a court order, and you should tell him so.
Conflict warning. Do not simply act for Chief Ade in that claim without addressing your own position. Your firm's exposure on the undertaking may make you a witness or give you an interest adverse to his instruction to withhold. Advise him to instruct separate counsel for the claim against the seller and co-operate fully with that counsel.