Rotimi Williams Akintokun V Legal Practitioners Disciplinary Committee (Lpdc) (2014)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C. 

This interlocutory ruling stemmed from the appeal filed by Mr. Rotimi Williams Akintokun, the appellant, which he filed sometime in April, 2006. From the record of appeal before this court, Mr. Akintokun, a legal practitioner, was practicing under the name and style of “ROTIMI WILLIAMS AKINTOKUN AND COMPANY” of 75B, Coker Road, Ilupeju, Lagos. The complaint levied against Mr. Akintokun emanated from a petition written against him to the Nigerian Bar Association [NBA] by his clients, the Ogunesu Family of Ule Ogunesu, 4 Olubi Street, Itundegun, Ikorodu, Lagos State. The clients alleged in their petition that Mr. Akintokun committed acts of professional misconduct in that while acting as their solicitor, he deliberately misled them regarding an alleged acquisition of their land by the Lagos State Government That he failed to carry out his clients’ instructions to promptly move against adversaries in respect of the land. He also caused the land to be under-surveyed with intent to cheat his clients. That he went further to sell the land without any authorization and contrary to the instructions of his clients. That he employed extra-judicial methods while pretending to be carrying out the instructions of his clients.

On the 4th day of April, 2006, after completion of hearing, the Legal Practitioners Disciplinary Committee [LPDC] of the Body of Benchers, delivered its Direction in which it directed the Chief Registrar of the Supreme Court to strike off the name of Mr. Akintokun from the Roll, as a legal practitioner in Nigeria.

Mr. Akintokun was dissatisfied with the direction of the LPDC and he lodged his appeal to this court.

Parties to the appeal filed and exchanged briefs of argument. The appeal was slated for hearing on the 22nd day of October, 2013.

On the hearing date, the panel, headed by my learned brother, Onnoghen, JSC; raised the issue, suo motu; whether the Honourable court has the jurisdiction to hear an appeal direct from the LPDC, in view of the court’s recent decision in ALADEJOBI V NIGERIAN BAR ASSOCIATION. Appeal No.SC.121/2011, delivered on the 12th day of July, 2013 (now reported in (2013) 15 NWLR (PT.1376) 66).

Some arguments were proffered before the panel by each of the counsel for the respective parties, both asking the court to depart from its decision given earlier in Aladejobi’s case The panel exercised its discretion and fixed the 13th of January 2014, for the issue raised to be heard by a full court, consisting of a seven member panel. That is how the present panel which took arguments from the parties, came about. It is to be noted that the Hon. Attorney General of the Federation and the President of the Nigerian Bar Association were invited by the court to serve as Amicus Curiae with a view to enriching the arguments on the issue at hand.

In all the four briefs of argument filed by [1] Chief Bolaji Ayorinde, SAN who is for the appellant in the appeal; [2] Mr. Emmanuel C. Aguma for the respondent in the appeal; [3] Mr. Mohammed Bello Adoke, SAN, as Amicus Curiae and [4] Mr. Oke Wali, SAN, Amicus Curiae, the single issue raised for determination is similar and that is:

“Whether in view of its recent decision in JIDE ALADEJOBI V. NIGERIAN BAR ASSOCIATION, the Supreme Court has jurisdiction to entertain the instant appeal against the direction of the Legal Practitioners Disciplinary Committee.”

In his submissions, the learned senior counsel for the appellant in the main appeal, Chief Bolaji Ayorinde (whom I shall be referring to hereinbelow as “Chief Ayorinde”, for short), argued that the decision of this court in the case of Aladejobi v Nigerian Bar Association now reported in (2013) 15 NWLR (P1.1376) 66, to the effect that the Supreme Court does not have jurisdiction to entertain appeal against the direction of the Legal Practitioners Disciplinary Committee was given per incuriam and he insisted this court to depart from its decision in Aladejobi’s case. He referred to the case of Charles Okike v The Legal Practitioners Disciplinary Committee (No.1) 2005 3-4 SC 49 at 67, where this court held that it had jurisdiction to entertain an appeal from the Directions of the LPDC. Chief Ayorinde submitted that the decision in Okike (supra) was never overruled in Aladejobi’s case. It was Okike v. LPDC (No.2) (2005) 15 NWLR (Pt.49) 471 which was considered and is clearly different and distinct from Okike No.1. He submitted that the principle of law decided in Okike No.1 is still valid and subsisting and it is the law to be followed as regards jurisdiction of the Supreme Court to entertain appeal from the Directions of the Legal Practitioners Disciplinary Committee.

It is Chief Ayorinde’s further submission that assuming, without conceding, that the case of Okike No.1 was considered by this court in Aladejobi’s case, this court is yet invited to set aside its decision in Aladejobi’s case. That it is undisputed that the Appeal Committee of the Body of Benchers is yet to be created up till now and an appellant cannot appeal to a non-existing body. In relation to the discipline of Legal Practitioners, generally, chief Ayorinde made copious references to some statutes and case law such as the Legal Practitioners (Amendment) Decree No. 21 of 1994. He argued that the Legal Practitioners Act Cap. L11, Laws of the Federation, 2004, did not take into cognizance the substantial amendments made by the Legal Practitioners Act (Amendment) Decree No.21 of 1994 and it does not represent the law. Statutes are not repealed by reference or implication but by direct provision of the law Ibidapo v Lufthansa Airlines (1997) 4 NWLR (Pt.498) 124 referred to. That as a matter of history, it has been the practice that the Federal Supreme Court and the present Supreme Court have always exercised jurisdiction in matters pertaining to the conduct of legal practitioners He cited sections 20, 31 to 37 of the Legal Practitioners Act Cap 101 of the Laws of the Federation and Lagos 1958 and sections 6[3] and 7[1] and [6] of Legal Practitioners Act, 1962, No. 33 which replaced the 1958 Laws; section 12[6] and [7] of the Legal Practitioners Act, Cap 207 of the LFN, 1990 as amended by Decree No 21 of 1994 which clearly provides that appeal against directions of the LPDC goes to the Supreme Court. Chief Ayorinde urged us to depart by overruling our decision in Aladejobi’s case in Appeal No SC.21/2011 delivered on 12/07/2013

Learned counsel for the respondent in the appeal, Emmanuel C. Aguma, Esq., (“Mr. Aguma”) for short, herein), made his submission in the brief of argument filed by him in respect of this matter that the judgment of this court in Aladejobi’s case (supra), did not take into consideration the court’s earlier decision in Okike’s case (supra) that had completely resolved the matter. This court, in that case, he added, reviewed Decree No.21 of 1994 and agreed that it had through a process of amendment created a new section 12[7] of the Legal Practitioners Act that allows appeal from directions of the LPDC to lie direct to this court. Mr. Aguma quoted extensively from the lead judgment of Uwais, CJN (as he then was), with which the six other Justices of the court concurred. This court, he argued, is vested with jurisdiction to hear appeals directly from the LPDC of the Body of Benchers.

Mr. Aguma, however, conceded to the fact that none of the senior counsel in Aladejobi’s case (supra) brought Okike’s case (supra) to the attention of this court. He conceded further that there is some difficulty that is created by the Law Reviewers because the amendments legislated in the procedure for the discipline of erring legal practitioners by the Legal Practitioners Act (Amendment) Decree No.21 of 1994 are omitted in the published statute. This omission, learned counsel submitted further, is capable of misleading the most diligent of courts and counsel. He referred to the comments made by the editors of the Nigerian Weekly Law Report (NWLR) in their report of (2006) 14 NWLR (Pt. 1000) 816 at pages 825 – 826 Mr. Aguma cited and quoted extensively Dr. Orojo’s seminal work titled “Professional Conduct of Legal Practitioners in Nigeria, 2008 by Mafix Books Limited, where the author considered the omission as wrongful. The comments by the Nigerian Weekly Law Report editors and by Dr. Orojo, learned counsel submitted, though not binding on this court but they accord with the earlier decision of the court in Okike’s case (supra). He then reviewed the status of the amendments contained in the Legal Practitioners Act (Amendment) Decree No. 21 of 1994 as omitted by the Legal Practitioners Act, Cap. L.11 LFN, 2004 (revised edition) He referred to section 2 of the Act which makes any inadvertent omission, alteration or amendment of existing statute as inconsequential to the validity and applicability of the statute. Learned counsel concluded his submission by stating that the inadvertent omission of Decree No.21 as an existing law from the Legal Practitioners Act Cap L11 2004, does not affect its validity and applicability; Decree No.43 of 1998, did not repeal the Legal Practitioners Act (Amendment) Decree No.21 of 1994. He finally drew attention that the current foundation for the discipline of erring legal practitioners is the Legal Practitioners Act (Amendment) Decree No 21 of 1994. The composition of the Legal Practitioners Disciplinary Committee is as provided in the 1994 (Amendment) Decree No 21 and not the one contained in Cap. L11, LFN, 2004. This court is urged to hold that it has jurisdiction to hear appeals directly from the LPDC of the Body of Benchers.

In his brief of argument and further oral adumbration thereof, the Hon. Attorney General of the Federation, Mr. Mohammed Bello Adoke, SAN, as an Amicus Curiae made submission that the Supreme Court has jurisdiction to hear any appeal including the instant appeal filed directly against the direction of the LPDC despite the recent decision of this court in Jide Aladejobi v. Nigerian Bar Association. He conceded that under section 12 of the Legal Practitioners Act 1975 (Decree No.15 of 1975 (Principal Act)), an appeal against the direction of the LPDC could only lie to the Appeal Committee of the Body of Benchers. That was the law also under the 1990 LFN. The position, he stated, changed when the Legal Practitioners (Amendment) Decree No.21 of 1994 was promulgated. He cited the effect of the amendment introduced by sections 10 and 11 of the said Decree which now conferred jurisdiction on the Supreme Court to entertain appeals directly from the directions of the LPDC, with effect from the 31st of July, 1992. The amendment, he said, had the effect of abolishing the Appeal Committee of the Body of Benchers. The Hon. Attorney General argued that the Legal Practitioners (Amendment) Decree No. 21 of 1994 has never been amended or repealed by any subsequent Decree or Act and therefore remains the applicable law on the subject matter. The learned Hon. Attorney General regretted the inadvertent omission made in the Legal Practitioners Act contained in Cap. L11 LFN, 2004 which did not reflect the substantial amendments made by the Legal Practitioners (Amendment) Decree No.21 of 1994. Despite the omission however, the Hon. Attorney General submitted that the 1994 amendment still represents the law which is that an appeal against the Direction of the LPDC shall lie directly to the Supreme Court and that this legal effect is achieved by virtue of the provisions of the Revised Edition (Laws of the Federation) Act 2007 which is the taw that gives legal force to the Revised Edition of the laws of the Federation of Nigeria, 2004. He quoted and relied on Section 2 of the said Act. That Decree No. 21 of 1994 is still an existing law within the meaning of the provisions of section 315[1][a] and 4[b] of the 1999 Constitution having not been expressly repealed by any Act of the National Assembly and despite its inadvertent omission in Cap L11 of the LFN,2004. The case of Ibidapo v Lufthansa Airline (1997) 4 NWLR (Pt.498) was referred to at page 124 where it was laid down that statutes are repealed not by reference or implication, but only by direct provisions in a written law. The learned Hon, Attorney General referred to the analysis made by Dr. Orojo, SAN at page 381 of his book on Professional Conduct of Legal Practitioners in Nigeria and the decision of this court in the case of Okike (supra) where this court recognized Decree No.21 of 1994 as the extant law in determining the jurisdiction of the Supreme Court to entertain appeals directly from LPDC and relied on same to entertain the appeal in that case. In his final submission, the amicus curiae (Hon. Attorney General) stated that in arriving at its decision in Aladejobi’s case (supra) this court neither considered the Legal Practitioners’ (Amendment) Decree No. 21 of 1994 nor the earlier decision of the court in Okike’s case (supra). The Okike’s case considered in Aladejobi’s case was a different one, entirely which had nothing to do with the jurisdiction of the court to entertain appeals from the LPDC. This court, he argued, has the power to depart from or overrule its previous decision where such decision was reached per incuriam. He mentioned other circumstances when this court may depart from or overrule its previous decision. He cited and relied on the case of Nnubia v. Attorney General of Rivers State & 2 Ors (2009) 40 NSCOR 90, 155 – 156. This court, he argued, arrived at its decision in Aladejobi’s case without the benefit of consideration of the operative law (sections 10[e] and 11) of the Legal Practitioners (Amendment) Decree No. 21 of 1994. Equally, the attention of this court was not drawn to Okike’s case (supra) not only as having been reached per incuriam but also as erroneous in law and in conflict with Okike (No.1) all of which are possible grounds for the court to overrule itself.