Jide Aladejobi V. Nigeria Bar Association (2013)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C.
This is an appeal against the direction of the Legal Practitioners Disciplinary Committee of the Body of Benchers (‘the Committee’ for short) which was delivered on 22nd February, 2011. Therein, the Committee directed the Chief Registrar of the Supreme Court to strike off the name of the appellant from the roll of Legal Practitioners in Nigeria.
It is pertinent to state the facts of the matter, briefly. On the 16th of March, 2005 the respondent addressed a complaint to the Committee against the appellant, a member of legal profession. The complaint was based on a petition by one Mrs. Victoria Akinyele Aliu through her solicitors – Mike Umonnan & Co. which alleged that the appellant –
“… conspired with a tenant of the complainant, one Alaji Saliu Gbolagade and forged the complainant’s signature on a lease agreement in respect of the complainant’s property situate at No.52, Western Avenue, Surulere, Lagos with intent to deprive the complainant of the ownership of the property.”
The complaint against the appellant before the Committee reads as follows:-
“That you Jide Aladejobi of counsel to Alhaji Saliu Gbolagade, on or about the year 2007, conspired with the said Alhaji Saliu Gbolagade to draft and execute a 10 Years Lease Agreement purportedly on behalf of Mrs. Victoria Akinyele Aliu (the petitioner) in respect of the Petitioner’s property situate at No. 52, Western Avenue, Surulere, Lagos with the intent to interfere with the petitioner’s ownership rights over the property, all contrary to Rules 24, 28 and 49 (a) and (b) of the Rules of professional Conduct in the Legal profession and section 12 of the Legal practitioners Act, 1990 as amended.”
Before the Committee, two witnesses testified for the respondent. Abubakar Ibrahim Maude, the Secretary of the Committee tendered the complaint received by the Committee while Mike Umonnan identified the petition as the one written by him on the instructions of the petitioner. As P.W.2, he maintained that he had been instructed to withdraw the complaint.
At the close of the respondent’s case, the appellant testified and was cross-examined. Pursuant to the order of the Committee, the appellant filed his written address to which there was no re-action by the respondent. The appellant’s written address was adopted before the Committee delivered its direction.
The Committee considered the evidence placed before it and thereafter found the appellant culpable of infamous conduct and directed the Chief Registrar of the Supreme Court to strike off the name of the appellant from the roll of Legal Practitioners in Nigeria.
The appellant felt unhappy with the decision of the Committee and has decided to appeal direct to this court. Briefs of arguments were filed and exchanged by the parties.
On 25th of April, 2013 when the appeal was heard, learned senior counsel to the appellant adopted and relied on the appellant’s brief of argument filed on 23rd May, 2011 as well as the appellant’s reply brief of argument filed on 29th June, 2011 He urged that the appeal be allowed.
Learned counsel to the respondent adopted and relied on the respondent’s brief of argument filed on 8th June, 2011. He referred to the Notice of Preliminary Objection raised by him on pages 5 – 6 of the brief which he moved accordingly. The Notice of Preliminary Objection reads as follows:-
“6.1 TAKE NOTICE that at or before the hearing of this appeal, the respondent shall pray the Supreme Court to strike out the appellant’s Notice of Appeal dated the 20th day of July, 2010 and afortiori dismissed the issues for determination distilled in the appellant’s Brief of Argument from the incompetent grounds of appeal.
6.2 TAKE FURTHER NOTICE that the grounds of the said objections are –
(i) By virtue of sections 11 and 12 (1) of the Legal Practitioners Act 1990 as amended, the appellant can only appeal to the Appeal Committee of the Body of Benchers against the direction of the Legal Practitioners Disciplinary Committee of the Body of Benchers dated 22nd day of February, 2011.
(ii) The appellant cannot appeal direct to the Supreme Court against the direction of the Legal Practitioners Disciplinary Committee of the Body of Benchers dated 22nd day of February, 2011 without first appealing to the Appeal Committee of the Body of Benchers.
(iii) The respondent is not the proper party in this appeal by virtue of sections 11 (7) and 12 (1) of the Legal Practitioners Act, 1990 as amended.
(iv) By virtue of sections 11 (7) and 12(5) of the Legal Practitioners Act 1990 as amended, the appellant’s appeal was filed out of time.
(v) The Supreme Court lacks the jurisdiction to entertain this appeal.
(vi) This appeal is incompetent.”
The crux of the preliminary objection relates to the jurisdiction of this court to entertain the appeal which the respondent feels is incompetent. Jurisdiction is very fundamental in the process of adjudication. It should be determined at the earliest opportunity. This is because if a court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.
It is apt for me to pose the vital question – what then is jurisdiction It is said to be the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Such authority of the court is controlled or circumscribed by the statute creating the court itself or it may be circumscribed by a condition precedent created by a legislation which must be fulfilled before the court can entertain the suit. It is the power and authority of a court to hear and determine a judicial proceedings and power to render particular judgment in a cause of action. See: Dingyadi v. INEC & Ors. (2011) 10 NWLR (pt. 1255) 347 at 390.
In support of the preliminary objection, learned counsel for the respondent submitted that this court does not have the jurisdiction to hear the appeal from the direction of the Committee dated 22nd February, 2011. He maintained that by virtue of sections 11(7) and 12 of the Legal practitioners Act, 1990 as amended, the jurisdiction to hear appeal from the direction of the Committee is expressly conferred on the Appeal Committee of the Body of Benchers. He opined that the appellant’s right of appeal to the Supreme Court can only be against the direction of the Appeal Committee of the Body of Benchers after hearing the appellant’s appeal from the direction of the Legal Practitioners Disciplinary Committee of the Body of Benchers.
Learned counsel submitted that the present appeal filed before this court without first appealing against the direction of the Committee dated 22nd February, 2011 to the Appeal Committee of the Body of Benchers is incompetent and this court has no jurisdiction to entertain this appeal. He felt that the appellant was obliged to first file an appeal at the Appeal Committee of the Body of Benchers before filing an appeal in this court. He referred to the case of Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 315) 1 at 25; UNILORIN v. Oluwadare (2006) 14 NWLR (pt.1000) 751 at 774 – 775.
Learned counsel further submitted that the failure of the appellant to first file his appeal before the Appeal Committee of the Body of Benchers against the direction of the Committee before filing this appeal in this court renders same defective in competence. He opined that the condition precedent to confer jurisdiction on this court has not been fulfilled. He referred to the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 594. He tried to compare the situation herein with what transpired in the case of Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78 at 142 where this court reprimanded litigants and their counsel for appealing from the decision of the High Court direct to this court.
On behalf of the appellant, senior counsel maintained that by the decision of this court in Okike v. LPDC (2005) 15 NWLR (Pt. 949) 471, appeal from the direction of the Legal Practitioners Disciplinary Committee lies directly to this court.
Senior counsel further asserted that the composition of the Appeal Committee as enjoined by subsection 2 of section 12 of the Legal Practitioners Act, whereby two members of the Association are part, renders the provision unconstitutional or null and void. He contended that such offends the principles of natural justice that no man shall be a judge in his own cause. He referred to section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. He cited City of London v. Wood, 701 12 MOD 669 at 687; and Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) NWLR (Pt. 7) 300 at 374.
Senior counsel opined that section 11(7) and 12 (1 – 2) of the Legal Practitioners Act, upon which the respondent’s Notice of preliminary objection are predicated, are for all intents and purposes unconstitutional, null and void. He strongly felt that the appeal is competent and in accordance with the Constitution.
Further, senior counsel observed that although the Legal Practitioners Act provides for an Appeal Committee to be established under section 12(1) and (2) of the Act, there is presently no Appeal Committee of the Body of Benchers constituted to determine appeals from the Legal Practitioners Disciplinary Committee. He submitted that the Appellant could not therefore have appealed to a non-existent Appeal Committee.
For a proper appreciation of the points canvassed by the parties; it is apt to reproduce the provisions of sections 11(7) and 12 (1) of the Legal Practitioners Act, 1990 as amended, thus:-
“11(7) The person to whom such a direction relates, may at any time within 28 days from the date of service on him of the notice of the direction, appeal against the direction to the Appeal Committee of the Body of Benchers established under section 12 of the Act; and the Disciplinary Committee may appear as the respondent to the appeal and, for the purpose of enabling directions to be given as to costs of the appeal and of proceedings before the Disciplinary Committee, shall be deemed to be a party thereto whether or not it appears on the hearing of the appeal.
12(1) There shall be a committee to be known as the Appeal Committee of the Body of Benchers (in this Act referred to as ‘the Appeal Committee’) which shall be charged with the duty of hearing appeals from any direction given by the Disciplinary Committee.”
It should be noted here that the word shall is employed in section 12(1) of the Legal Practitioners Act, 1990 as amended. The purport of same is not farfetched. The word shall as employed in the law denotes obligation or a command and gives no room for discretion. It imposes a duty. A peremptory mandate is enjoined. See: Bamaiyi v. Attorney-General, Federation & Ors. (2001) 12 NWLR (Pt. 727) 466 at 497.
From a clear reading of the above reproduced section 12(1) of the Act, it is basic that there must be in place the Appeal Committee of the Body of Benchers which is charged with the duty of hearing appeals from any direction given by the Disciplinary Committee. It is clear to me that the appellant herein cannot appeal direct to this court against the direction handed out on 22nd February, 2011 by the Disciplinary Committee without first appealing to the Appeal Committee of the Body of Benchers. It hardly needs any gainsaying that the appeal of the appellant direct in this court without going through the Appeal Committee of the Body of Benchers is incompetent. This court has no jurisdiction to entertain same.
Furthermore, it is the law that where a statute prescribes a legal line of action for initiating court process, all remedies in the statute should be duly followed to the letter.
Refer to the case of Eguamwense v. Amaghizemwen (supra) at page 25. The law provides that the appellant should appeal to the Appeal Committee of the Body of Benchers. He must exhaust all the remedies by filling his appeal at the Appeal Committee from where he may have a lee-way to imbue this court with jurisdiction.
Perhaps, it should be further stated that the failure of the appellant to file his appeal before the Appeal Committee of the Body of Benchers against the direction of the Legal Practitioners Disciplinary Committee before filing appeal in this court engenders incompetence which cannot be cured. This is because the condition precedent to confer jurisdiction on this court has not been fulfilled. See: Madukolu v. Nkemdilim (supra) at page 594.
In a similar scenario in the case of Ibori v. Agbi (supra) at page 742, this court frowned at parties who tried to frog jump the Court of Appeal by appealing direct to this court from the decision of the High Court. This court will not usurp the function of the Court of Appeal as to do so will amount to a violation of the Constitution and will be null and void.
On behalf of the appellant, it was submitted that from the decision of this court in Okike v. LPDC (supra) appeal from the direction of the Legal Practitioners Disciplinary Committee lies directly to this court. I dare say it that issue of jurisdiction of this court was not remotely raised therein. The applicable sections of the law were not considered and pronounced upon in the lead judgment therein. With due diffidence, the opinion was given per incuriam and cannot stand the test of time in the face of the applicable law earlier on discussed in this judgment.
Senior counsel to the appellant had axe to grind with his surmised composition of the Appeal Committee as enjoined by subsection 2 of section 12 of the Legal Practitioners Act, whereby two members of the Association are part, renders the provision unconstitutional or null and void. He contended that such offends the principles of natural justice that no man shall be a judge in his own cause.
To my mind, this line of tactics employed by the appellant appears precipitate; in the main. The law provides for the establishment of an Appeal Committee of the Body of Benchers. The appellant will have his day to challenge the composition of the Appeal Committee when he gets there as dictated by the law. For now, he should keep his gun powder dry.
Senior counsel to the appellant observed that there is presently no Appeal Committee of the Body of Benchers constituted to determine appeals from the Legal Practitioners Disciplinary Committee. He felt that the appellant could not have appealed to a non-existent Appeal Committee.
There is no doubt about it that the Body of Benchers is mandated to establish an Appeal Committee of the Body of Benchers to hear appeals from the directions of the Legal Practitioners Disciplinary Committee of the Body of Benchers. This is as dictated by the provisions of section 12(1) and (2) of the Act as amended. If it is a fact that there is presently no Appeal Committee of the august body on ground, such a lacuna should be remedied without any undue delay so as to enable the appellant take necessary action deemed fit as dictated by the law before the Appeal Committee of the Body of Benchers. If I may suggest, it should be a standing Committee like the Legal Practitioners Disciplinary Committee. I dare say it that the time for same is now in my humble view.
The preliminary objection is clearly meritorious. It is hereby sustained. The appeal before this court is incompetent. This court is not imbued with jurisdiction. The appeal is hereby struck out.
SC.121/2011
