Obiajulu Nwalutu V. Nigerian Bar Association & Anor (2019)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKAAHS, J.S.C.
The facts leading to this appeal may be briefly stated as follows:-
On 19 July, 2010 the appellant purportedly acting as counsel to Afribank Plc (now Mainstreet Bank Limited) filed a motion on notice for the joinder of Afribank Nigeria Plc as 3rd Plaintiff in Daily Times of Nigeria Plc & Anor v. Citco Communication in Suit No. FHC/L/CS/426/2010 before the Federal High Court, Lagos. Subsequently, when Afribank Nigeria Plc got wind of the motion for joiner as a co-plaintiff to the aforesaid suit, the Acting Company Secretary/Legal Adviser of the Bank, Umar Dan-Umma Esq., instructed the Bank’s Solicitor Chief A. A. Aribisala SAN in writing on 20 October, 2010 to take immediate and appropriate legal action to redress the unlawful imposition of counsel and purported joinder as co-plaintiff to the action.
Following the instructions received from the Bank, Chief Aribisala wrote a petition on 21 October, 2010 to the 1st respondent complaining that the appellant joined his client, Afribank Nigeria Plc as a co-plaintiff in Suit No.
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FHC/L/CS/426/2010 without instructions. He later filed a motion on 1 November, 2010 to set aside the joinder which was granted on 8 April, 2011 when the Federal High Court set aside its earlier order of joinder of Afribank Nigeria Plc and struck out its name from the suit.
The 1st respondent investigated the said petition and found that a prima facie case of professional misconduct was made out against the appellant necessitating his having to face the 2nd respondent on a complaint of professional misconduct contrary to Rules 1, 30 and 47 of the Rules of Professional Conduct in the Legal Profession 2007.
The 1st respondent called Zibai Blessed Katung, the Assistant secretary of the Legal Practitioners Disciplinary Committee (LPDC), the Body of Benchers who adopted his witness statement on oath and tendered exhibits P1A-P1D, P1E-P176E whilst the appellant also adopted his witness statement on oath and tendered exhibits D1-D3. The appellant denied the complaint and stated that he was merely following the oral instructions of his erstwhile principal Mr. Chinedu Oranuba who was a Director of Daily Times Plc.
On 30 November, 2015, the 2nd respondent rendered its
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direction and found the appellant liable for professional misconduct for acting as counsel to Afribank Nigeria Plc without authorisation and suspended him from practicing as a Legal Practitioner for 5 years. The appellant was dissatisfied with the final direction of the Honourable Committee and filed his appeal before this Court to challenge the Direction. Six grounds accompanied the Notice of Appeal from which the appellant formulated three issues for determination. The appellant’s brief as well as 1st and 2nd respondents’ briefs were all deemed filed on 4/7/2018. The issues in the appellant’s brief are:-
(a) Whether the fundamental rights of the appellant were not breached by the procedure adopted and pronouncements made by the Legal Practitioners Disciplinary Committee in its proceeding in the trial of the appellant so as to render the decisions/directions dated 30 November, 2015 altogether null and void.
(b) Whether the composition of the Legal Practitioners Disciplinary Committee that heard and determined the petition against the appellant is proper being at variance with the provision of the Legal Practitioners
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Act CAP 41 Laws of the Federation of Nigeria 2004 as to rob it of jurisdiction.
(c) Whether the decision/direction of the Legal Practitioners Disciplinary Committee is supported by credible and admissible evidence.
The 1st respondent indicated in its brief that it was filing a separate motion to contend that the first issue formulated for determination in paragraph 3.1 (a) of the appellant’s brief of argument is incompetent as it does not arise from the grounds of appeal filed by the appellant as shown at pages 297-301 of the records and urged this Court to strike out issue No. 1.
The 1st respondent further contended that no issue for determination has been raised from ground of appeal no. 2 (at pages 298-299) of the Records) and same is deemed abandoned and urged this Court to strike out the aforesaid ground of appeal.
Apart from the preliminary objection, learned counsel formulated two issues for determination as follows:-
(i) Whether by virtue of the provisions of Section 11(1) and (2) (a-e) of the Legal Practitioners Act (published as supplementary to the Laws of the Federation of Nigeria 2004) the Legal Practitioners Disciplinary Committee of
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the Body of Benchers as presently constituted had jurisdiction to determine the complaint of professional misconduct against the appellant (distilled from ground of appeal number 1)
(ii) Whether or not from the evidence before the Legal Practitioners Disciplinary Committee, (LPDC) the Honourable Committee was right when it held that the appellant breached Rule 47 of the Rules of professional conduct in the legal profession when he acted for Messrs Afribank Nigeria Plc without being briefed, instructed or authorised to that effect. (Distilled from grounds of appeal numbers 3, 4, 5 and 6).
The 2nd respondent adopted issue 1 in the appellant’s brief as its issue and the issues framed by the 1st respondent as its issues two and three respectively.
The appellant did not file a reply brief in response to the preliminary objection contained in the 1st respondent’s brief of argument.
THE PRELIMINARY OBJECTION
The 1st respondent raised two preliminary points to the appellant’s issue 1. Learned counsel contended that the appellant’s brief of argument is incompetent as it does not arise from the grounds of appeal filed and urged this Court to
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strike out issue 1. Learned counsel cited the following cases in support of his contention:-
B. O. Osinupebi v. Quadri Saka Saibu (1982) 7 SC 104; (1982) 13 NSCC 214 at 218; Alhaja Sabiriyu Shittu & Ors v. Otunba Oyewole Fashawe (2005) All FWLR (Pt. 278) 1017 at 1029 and Kachalla v. Banki (2006) All FWLR (Pt. 309) 1420 at 1432.
The second objection is that no issue for determination has been raised from ground 2 and same is deemed abandoned. Learned counsel urged this Court to strike out the aforesaid ground of appeal and relied on Bakare v. Lagos State Civil Service Commission (1992) 8 NWLR (Pt. 262) 641 and Alhaji Fatai Adekunle Teriba v. Ayoade Tiamiyu Adeyemo (2010) 11 NWLR (Pt. 1211) 242;(2010) All FWLR (Pt. 533) 1868 at 1887 in support of the submission.
Since the appellant did not file a reply n answer to the preliminary points raised by the 1st respondent, he is deemed to have admitted that issue 1 was not distilled from any of the grounds of appeal and so is incompetent; also no issue was formulated from ground 2 and the said ground is deemed abandoned. It was held in Bakare v. L.S.C.S.C (1992) 8 NWLR [Pt. 26) 641 that an appeal Court
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will refuse to consider and pronounce on an issue formulated for determination which does not arise from the grounds of appeal filed. See: Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260; Adejugbe v. Ologunja (2004) 6 NWLR (Pt. 868) 668; Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671. Issue 1 is incompetent and ground 2 of the Notice of Appeal is deemed abandoned. They are struck out.
Issue 1 in the 2nd respondent’s brief is also struck out as being incompetent.
What is left for consideration in the appellant’s brief are issues 2 and 3.
Learned counsel for the appellant in dealing with the improper composition of the Disciplinary Committee referred to Section 10 (2) of the Legal Practitioners Act and Section 11 (2) of the Legal Practitioners (Amendment) Act No. 21, 1994 which set out the composition of the Disciplinary Committee and submitted that the Committee which tried the appellant was composed of persons who are not mentioned in Section 10 (2) of the Legal Practitioners Act and Section 11 (2) of the Legal Practitioners (Amendment) Act. He invited this Court to note that the composition of the Committee was a recurring decimal throughout the
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proceedings of the Committee. He argued that the issue of composition is intrinsic to the fulfilment of the fair hearing requirements of Section 36 of the Constitution that guarantees the independence and impartiality of the Committee and submitted that where a panel is constituted in such a way that derogates from or affects a persons right to fair hearing, whatever decision is reached by such panel will amount to a nullity. He cited the following cases in support of the argument:
Dr. O. G. Sofekun v. Chief N. O. Akinyemi & 3 Ors (1980) 5-7 SC 1; Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt. 1236) 175 at 219 and Madukolu v. Nkemdilim (1962) 1 All NLR 587.
He argued that the first paramount factor for competence of a Court is its proper constitution as regards number and qualification of the members of the bench and no member is disqualified for one reason or the other. He also referred to the records where the membership of the Committee remained fluid right up to when the Committee rendered its direction and submitted that where there is a change in the composition of the panel at some point during the
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proceedings, the entire proceedings will be declared a nullity. This submission was anchored on the following cases:-
Adeigbe & Anor v. Kusimo & Ors (1965) 1 All NLR 260; Sokoto State Govt. v. Kamdex Nig. Ltd. (2007) 7 NWLR (Pt. 1034) 466 at 490; Ubwa v. Tiv Traditional Council & Ors (2004) 11 NWLR (Pt. 884) 427; Ede v. Rent Tribunal Court 4 (2004) All FWLR (Pt. 189) 1191 at 1200.
Learned counsel emphasized that the composition or constitution of 2nd respondent that gave the Direction against the appellant on 30/11/2013 was not known to law and it was improperly constituted as the Chairman was not the Attorney-General of the Federation and so it is an illegal panel. He argued that the act of the 2nd respondent allowing an illegal panel/body to determine the fate of the appellant is a travesty of justice and this Court should declare the decision null and void and urged this Court to condemn and disapprove the composition of the 2nd respondent for its non-compliance with the clear statutory provisions of the Legal Practitioners Act 2007 as was decided by the Court of Appeal in the case of Chief Andrew Oru v. NBA and L.P.D.C. in appeal No. CA/L/586/2009 delivered on 5th
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June, 2015. He therefore urged this Court to declare the Direction given by the 2nd respondent against the appellant as null and void and set aside the said Direction.
On the 3rd issue, learned counsel for the appellant argued that the key issue for determination before the panel was the issue of ownership of Core Law Barristers and Solicitors. He said the 2nd respondent came to the conclusion that the appellant is the owner of Core Law and that it was on this basis that it found the appellant guilty of infamous conduct and maintained that the conclusion was not supported by any credible and admissible evidence. He submitted that where a decision or finding of a Court or Judicial body is not supported by evidence or where it is at variance with the evidence adduced, the appellate Court has power to set aside such a decision. He relied on Anzaku v. Governor, Nasarawa State (2005) 5 NWLR (Pt. 919) 448 at 496-497. He argued that since the 1st respondent did not allege that the appellant owned the law firm, issue was not joined and therefore the 2nd respondent was very wrong to have made a
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finding on the ownership of the law firm and even if issue was joined, the onus in proving the ownership of the law firm was on the 1st respondent and the said onus would be discharged by the production of the certificate of registration of the company or certificate of business name which the 1st respondent failed to discharge.
Learned counsel for the appellant alleged that the finding made by the 2nd respondent was at variance with the evidence led. He referred to the counter-affidavit which was sworn to by Mr. Oranuba in which he made it clear that it was the Company Secretary of Afribank that considered and approved the filing of the motion for joinder. He further deposed to the fact that the approval to file the motion for joinder given to the appellant was made in his presence when they visited the Core Law Chambers where the appellant was working. He pointed out that these depositions were not controverted or contradicted by the 1st respondent by way of a counter-affidavit. He said that Mr. Ihenacho being the Principal of Core law from whom the appellant received instructions made a deposition which was not controverted. He submitted that a deposition in an affidavit that is not
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controverted is deemed to be established and referred to lkono Local Government v. De Beacon Finance & Secretary Ltd (2002) 4 NWLR (Pt. 756) 128 at 142. He argued that findings at pages 290-291 of the record that the appellant did not file the motion for joinder as employee of Core Law Chambers but on his own volition is clearly at variance with the affidavit evidence of the appellant and that of Mr. Oranuba, which was not controverted or contradicted by the respondent.
He submitted that failure by 2nd respondent to act on the evidence of Mr. Oranuba before it rendered the findings at pages 290-291 perverse and cited Aguocha v. Aguocha (2005) 1 NWLR (Pt. 906) 165 at 197 in support. He therefore urged this Court to set aside the findings and the Direction of the 2nd respondent since the findings are not supported by evidence but at variance with the evidence.
Learned counsel for the 1st and 2nd respondents proffered the same arguments in response to the issues argued in the appellant’s appeal. They submitted that the extant law which is in operation regarding the composition of Legal Practitioners Disciplinary Committee of the Body of
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Benchers is Section 11(1) and (2) of the Legal Practitioners Act 2004 (incorporating the provisions of the Legal Practitioners (Amendment Decree No. 21 1994) published as Supplementary to the Laws of the Federation of Nigeria 2004. He submitted that the decision of the Court of Appeal in Chief Andrew Oru v. Nigerian Bar Association & Anor (2016) All FWLR (Pt. 816) 543 in the light of the current position of the law (following the inclusion of the earlier omitted Decree No. 21 of 1994 into the Legal Practitioners Act by way of the supplement to the revised laws of the federation of Nigeria) was decided per incuriam and that decision is only of persuasive authority. It is learned counsel’s contention that because of the varying duties of members of the 2nd respondent, it is only the Chairman that is constant in all sittings and consequently, the changes in the participation by members in any case as in this matter will not affect the validity of such Direction so long as the statutory quorum of 5 members is formed. He relied on Alhaji Ahmed Garba Bichi & Ors v. Alhaji Ibrahim Shakarau & Ors (2009) LPELR 3874(CA). He maintained
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that the quorum of the Honourble Committee is 5 and from the records, there was quorum throughout the sitting of the Committee and its proceedings and direction are valid and proper and has not caused lack of fair hearing or occasioned a miscarriage of justice against the appellant. He therefore submitted that the Honourable Committee was properly constituted and had jurisdiction when it sat and heard the complaint of professional misconduct against the appellant.
On issue no. 2 learned counsel traced the history of the petition wherein Chief A. A. Aribisala, SAN caused a petition to be written on behalf of Afribank Plc against the appellant to the respondent for acting as counsel to the aforesaid bank without authorisation. The 1st respondent referred to Chief A. A. Aribisalas petition of alleged professional misconduct against the appellant to its Investigation Committee which subsequently found that a prima facie case had been made out against the appellant and the matter was transmitted by the General Secretary of the 1st respondent to the Honourable Committee. Learned counsel maintained that the 2nd respondent after hearing witnesses found that the
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appellant was in breach of Rule 47 of the Rules of Professional Ethics for Legal Practitioners for acting for Afribank Nigeria Plc without authorisation and suspended him from legal practice for 5 years. He submitted that there was abundant evidence before the 2nd respondent that:-
(i) The appellant Court processes to join Afribank Nigeria Plc as a party in Suit No. FHC/L/CS/426/2010 and did join Afribank Nigeria Plc to the aforesaid suit as co-plaintiff.
(ii) Afribank Nigeria Plc on learning of the joinder as a co-plaintiff disclaimed the appellant and instructed her counsel Chief A. A. Aribisala, SAN to set aside the joinder and the Court accordingly set aside the joinder.
Learned counsel contended that since these pieces of evidence were not challenged or rebutted by the appellant, the 2nd respondent was right when it believed and relied on such evidence. He placed reliance on Dr. Joseph Akhigbe v. Ifeanyi Chukwu Osondu Co. Ltd (1999) 11 NWLR (Pt. 625) 1; (1999) 7 SCNJ 1 at 16. He said the appellant’s defence was that he was orally instructed by Chinedu Oranuba Esq. his erstwhile Principal and current Director of Daily Times Plc in the presence of “one other man from
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Afribank who he believed to be the Company Secretary of Afribank Plc” to urgently prepare a motion on Notice to join Afribank Nigeria Plc in Suit No. FHC/L/CS/426/10 pending at the Federal High Court, Lagos. Learned counsel submitted that in the light of the evidence before the Honourable Committee, the onus of proof which preponderated on the appellant was not displaced and the appellant’s failure to call both Chinedu Oranuba Esq. and the alleged Company Secretary of Afribank was fatal to his defence.
RESOLUTION OF THE ISSUES RAISED
Before the decision of this Court in Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300 ; (1985) 2 NSCC Vol. 16 page 998, the Legal Practitioners Act No. 15 of 1975 provided in Section 10 the establishment of a Disciplinary Committee and the composition of its membership. Section 10(1) and (2) provided as follows:-
“10(1) There shall be a committee to be known as the Legal Practitioners’ Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty of considering and
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determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Act.
(2) The Disciplinary Committee shall consist of
(a) the Attorney-General of the Federation, who shall be chairman;
(b) the Attorneys-General of the States in the Federation;
(c) twelve legal practitioners of not less than ten years’ standing appointed by the Benchers on the nomination of the Association”.
The composition of the Legal Practitioners Disciplinary Committee was later amended by the Legal Practitioners (Amendment) Decree No. 21 of 1994 which was published as Supplementary to the Laws of the Federation of Nigeria 2004. Section 11 (1) & (2) provides as follows:-
“11-(1) There shall be a Committee of the Body of Benchers to be known as the Legal Practitioners Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty of considering and determining any case where it is alleged that a person who is a member
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of the legal profession has misbehaved in his capacity as such or should for any other reason be the subject of proceedings under this Act.
(2) The Disciplinary Committee shall consist of:-
(a) a Chairman who shall not be either the Chief Justice of Nigeria or a Justice of the Supreme Court;
(b) two Justices of the Court of Appeal one of whom shall be the President of the Court of Appeal.
(c) two Chief Judges;
(d) two Attorneys-General who shall be either the Attorney-General of the Federation and the Attorney- General of the State or two State Attorneys-General; and
(e) four members of the Association who are not connected with either the investigation of a complaint against a legal practitioner for determination by the Disciplinary Committee”.
The amendment addressed the problem which arose in L.P.D.C v. Fawehinmi supra where the Attorney-General of the Federation was the Chairman of the Disciplinary Committee and also initiated disciplinary proceedings against the respondent. The respondent applied to Court for an order prohibiting the Disciplinary Committee as
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constituted from hearing the charges of professional misconduct preferred against him having regard to the principles of natural justice embedded in the principle of nemo judex in causa sua (no one can be judge in his own cause). In seeking the order, the respondent based his application on Section 42 (3) of the 1979 Constitution and sought for the enforcement of his fundamental right to fair hearing under Section 33 of the Constitution. He predicated his complaint on the likelihood of bias since the Attorney-General and 3 other members of the Committee had actively participated in investigating the matter and had in an earlier occasion expressed strong opinions against the respondent. The trial Judge found for the respondent and the Court of Appeal dismissed the appeal filed by the Committee. On a further appeal to the Supreme Court, the appeal was dismissed. The Court held that in the exercise of its disciplinary authority over erring legal practitioners, the Legal Practitioners Disciplinary Committee must observe the rules of natural justice and in that con, it must not only avoid bias but also the likelihood of bias. Thus the Attorney-General of the Federation has ceased to be
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the Chairman of the Disciplinary Committee. Any direction given by the Disciplinary Committee against a legal practitioner invariably is challenged at the Supreme Court and this is the rationale for excluding the Chief Justice and Justices of the Supreme Court from being members of the Disciplinary Committee. Where any of the members listed in Section 11 (2) (b)-(e) is a complainant he cannot take part in the disciplinary proceedings as such a member.
Learned counsel for the respondents are on firm ground when they argued that this Court never held that Decree No. 21 of 1994 was repealed in Aladejobi v. Nigerian Bar Association (2013) 15 NWLR (PT. 1376) 66 and Rotimi Williams Akintokun v. Legal Practitioners Disciplinary Committee (2014) 13 NWLR (Pt. 1423)1. The issue which this Court dealt with in the two appeals was that an appeal from the direction given by the Disciplinary Committee should be lodged with the Appeal Committee of the Body of Benchers as provided under Section 12 (1) & (2) of the Legal Practitioners Act Cap. L 11, Laws of the Federation of Nigeria 2004. The two decisions have in no way affected the
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composition of Legal Practitioners Disciplinary Committee as currently constituted. The argument advanced by learned counsel for the appellant in paragraph 5.4 of his brief that the extant law dealing with the composition of the Disciplinary Committee of the Body of Benchers is Section 10 of the Legal Practitioners Act CAP L 11 Laws of the Federation of Nigeria 2004 which has the Attorney-General of the Federation as Chairman is therefore not correct. The extant law which is in operation is the Legal Practitioners Act 2004 (incorporating the provisions of the Legal Practitioners) (Amendment) Decree No 21, 1994) published as Supplementary to the Laws of the Federation of Nigeria, 2004. The Court of Appeal in Chief Andrew Oru v. Nigerian Bar Association & Anor (2016) All FWLR (Pt. 816) 543 reached its decision per incuriam. The Honourable Committee was properly constituted and had the requisite jurisdiction when it sat and heard the complaint of professional misconduct against the appellant.
Apart from the composition of the Committee, learned counsel for the appellant argued that where the panel that sat and heard a matter is different from the panel that
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delivered judgement in the same matter, the effect on the proceedings is to render them null and void.
Learned counsel for the respondents conceded that the membership of the 2nd respondent varied and that it is only the Chairman that was constant in all sittings but argued that since the quorum of the Committee was 5 and that number was retained throughout, the proceedings and direction are valid and proper, as it did not occasion a miscarriage of justice on the appellant. Learned counsel for the respondents relied on Alhaji Ahmed Garba Bichi & Ors v. Alhaji Ibrahim Shekarau & Ors (2009) LPELR 3874 (CA); 2009 7 NWLR (Pt. 1140) 311. This case dealt with an election petition where the 1999 Constitution, the Schedule to the Constitution and the Schedule to the Electoral Act, 2006 provided for the composition and quorum of the National Assembly and the Governorship and Legislative Houses Election Tribunals. Section 285 (3) and (4) of the 1999 Constitution provides:-
“285(3) The composition of the National Assembly Election Tribunal, Governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule to this Constitution.<br< p=””
</br<
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(4) The quorum of an election tribunal established under this section shall be Chairman and two other members”.
Paragraphs 24 (2) and 26 (2) of the First Schedule to the Electoral Act, 2006 read as follows:-
“24(2) If the Chairman of the tribunal or Presiding Justice of the Court who begins the hearing of an election petition is disabled by illness or otherwise, the hearing may be recommended and concluded by another Chairman of the tribunal or Presiding Justice of the Court appointed by the appropriate authority.
26(2) After the hearing of the election petition is concluded, if the Tribunal or Court before which it was heard has prepared its judgment but the Chairman or the Presiding Justice is unable to deliver it due to illness or any other cause, the judgement may be delivered by one of the members, and the judgment as delivered shall be the judgment of the Tribunal or Court and the member shall certify the decision of the Tribunal or Court to the Resident Electoral Commissioner or to the Commission”.
Since a quorum was formed with the Chairman and proceedings had been taken up to when judgment
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was written, a new Chairman in the absence of the original Chairman could be appointed to deliver the judgment.
In contrast with the above provisions, Section 11(2) of the Legal Practitioners (Amendment) Decree No. 21 of 1994 enumerates the persons who can constitute the Legal Practitioners Disciplinary Committee without stating how many of them can form a quorum. Notwithstanding the fact that the Chairman was present throughout from the time the appellant took his plea in which he denied being liable to the charge of professional misconduct right up to the delivery of the direction the proceedings were tainted by the change in the composition of the Committee. One of the Committee members, Amina Dyeris-Sijuade was present only once on 30 November, 2015, the date the final direction was delivered (see page 285 of the records). It was only J. B. Daudu Esq. the Chairman and Tijjani Inuwa-Dutse, a member that were present throughout the proceedings. Where a Court of tribunal is differently constituted during the hearing of the case, or on various occasions when it met, or where one member did not hear the whole evidence, the effect on the
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proceedings is to render them null and void.
See: Adeigbe & Anor v. Kusimo & Ors (1965) All NLR 260; Ubwa v. Tiv Traditional Council & Ors (2004) 11 NWLR (Pt. 884) 427; Sokoto State Government v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466.
One important aspect of this case is that Chief A. A. Aribisala SAN who initiated the petition against the appellant did not appear before the Committee to adopt his witness depositions. His non appearance before the Committee is tantamount to him abandoning the petition. The appearance of Zibai Blessed Katung, the Assistant Secretary of the Body of Benchers who adopted his witness statement on Oath cannot take the place of Chief A. A. Aribisala SAN and despite the deposition in paragraph 11 of his written statement that
“That from what I read in the documents in the file, Mr. Obiajulu Nwalutu as a Legal Practitioner, filed processes in Suit No. FHC/L/CS/426/10 DAILY TIMES OF NIGERIA PLC & ANOR v. CITCO COMMUNICATIONS LTD & 5 ORS before the Federal High Court, Lagos purporting to represent Messrs Afribank Plc without instructions to do so contrary to the existing laws relevant thereto”.
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this would only be a matter of opinion and the only people who could substantiate the allegation of professional misconduct against the appellant would be Chief A. A. Aribisala SAN and more especially Umar Dan-Umma, the Group Company Secretary/Legal Adviser.
The trial of the appellant is quasi-judicial and the Legal Practitioners Disciplinary Committee being a “Court or tribunal” as envisaged under Section 33 (1) of the Constitution of the Federal Republic of Nigeria 1979 is more than an administering authority of the type envisaged under Section 33(2) thereof. In the unanimous decision of this Court in L.P.D.C v. Fawehinmi supra it was held that the Legal Practitioners Disciplinary Committee which exercises the important function of considering and determining cases of misconduct alleged against legal practitioners should in every step they take in this important sphere of human activity be guided by the immortal principles of eternal or natural justice. There must be valid and credible evidence adduced before the Legal Practitioners Disciplinary Committee upon which it will base its direction of
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suspending the appellant from engaging in legal practice for 5 years. As rightly observed by the Legal Practitioners Disciplinary Committee, Chief A. A. Aribisala SAN remains a proposed witness who did not appear to adopt his deposition. It was therefore wrong to use a document attached to the deposition in finding the appellant guilty when the said document was not properly tendered before the Legal Practitioners Disciplinary Committee.
I find that the appeal has merit and it is hereby allowed. I hereby set aside the direction which found the appellant, Obiajulu Nwalutu guilty of professional misconduct in the course of the performance of his duty as a legal practitioner and directing his suspension from engaging in legal practice for 5 years is set aside. The appellant is acquitted of the charge of professional misconduct.
SC.30/2016
