Waziri V. Legal Practitioners Disciplinary Committee & Anor (2021)
LAWGLOBAL HUB Lead Judgment Report
The appellant a legal practitioner, was tried for professional misconduct. Before the Legal Practitioners Disciplinary Committee (LPDC) he defended a six count charge. On 22nd May 2017 the LPDC comprising J.B. Daudu, SAN – Chairman, and 5 other members namely – Hon. Justice U. Umokoro, CJ, Delta State: Hon. Justice P. D. Damulak, CJ, Plateau State; Yusuf Ali, SAN; Emmanuel C. Ukala, SAN, and Tijjani Inuwa Dutse, mni, delivered the decision of the LPDC which found him guilty of “infamous conduct in the course of the performance of his duty as a legal practitioner as set out in counts 1, 2 and 3 of the complaint”. Upon his conviction, the LPDC directed the Chief Registrar of the Supreme Court to strike out (his) name from the roll of legal practitioners. It is against this decision and direction that the appellant has appealed. One of the issues he has formulated for the determination of this appeal is: whether the variation of the membership of the Legal Practitioners Disciplinary Committee on different occasions during the pendency of the proceedings before it does not render the direction of the committee nullity?
The appellant, in paragraphs 3.4 – 3.13, had summarized the facts on which this issue predicates thus:
3.4 Hearing of oral evidence commenced on the 14th April, 2016, and subsequent sittings were held on 8th May, 2016; 30th June, 2016; 27th October, 2016; 21st November, 2016; 22nd November, 2016; 27th February, 2017 and the direction of the committee was given on 22nd May, 2017. The constitution of the membership of the Committee during the hearing of the complaint on these various dates was varied and inconsistent.
3.5 On 14th April, 2016, when the evidence of PW1 was heard in part, the Committee was constituted by J. B. Daudu, SAN, as Chairman and Umukoro (CJ), Damulak (CJ), Ukala, SAN, Dyesris-Sijuade, (A.-G.,), Amechi, SAN, Aguma, SAN (A.-G.,) as members. (Page 310 of the record of appeal).
3.6 The constitution of the committee on 18th May, 2016 when hearing of evidence of PW2 continued and was concluded. The committee was constituted by J. B. Daudu, SAN, as Chairman, and Galinje, PJCA (AHTW), Umukoro, (CJ), Damulak (CJ), Ali SAN, Inuwa-Outse, Dyeris-Sijuade (AG) as members (Pages 338 of the record of appeal).
3.7 The Committee was again differently constituted on 30th June, 2016 when evidence of DW1 and DW2 were heard. J. B. Daudu, SAN, sat as chairman, and while Galinje (PJCA), Umukoro (CJ), Inuwa-Dutse, Dyeris Sijuade as members. (Page 341 of the record of appeal).
3.8 There was yet another variation in the constitution of the Committee on 27th October, 2016, when the evidence of DW3 was heard. The composition of the Committee had J. B. Daudu, SAN, as Chairman, and Umukoro (CJ), Damulak (CJ), Inuwa-Dutse, Dyeris-Sijuade (A.-G.,) as members, (Page 351 of the record of appeal), while on 21st November, 2016 and 22nd November, 2016, on which dates the evidence of DW4, DW5 and DW6 were heard, the constitution of the Committee comprised of J.B. Daudu, SAN, as Chairman, and Damulak (CJ), Umukoro (CJ), Ali, SAN, Inuwa-Dutse, Ukala, SAN, Dyeris-Sijuade (A.-G.,) as members. (Page 358 & 419 of the record of appeal).
3.9 Final addresses were adopted on 27th February, 2017, on which date the composition of the committee had J. B. Daudu, SAN, as Chairman, and Bulkachuwa (PCA), Umukoro (CJ), Ukala, SAN, Inuwa-Dutse as members. (Pages 496 of the record of appeal) .
3.10 On 22nd May, 2017, when the direction of the Committee was delivered, the Committee was constituted by J. B. Daudu, SAN as Chairman, and M. Umukoro (C.J. Delta); P. D. Damulak (C.J. Plateau); Yusuf Ali, SAN; E. C. Ukala, SAN; Tijjani Inuwa-Dutse as members. (Pages 554 of the record of appeal).
3.11 What is clear from the foregoing is that the composition of the Committee from the commencement of hearing to the date of its direction was so varied that only two (2) of the members of the Committee who delivered the direction of 22nd May, 2017 (J. B. Daudu, SAN, Chairman, and Umukoro (CJ), member) were consistent on the Committee throughout evidential hearing of the complaint against the appellant. Consequently, not all members of the Committee who gave the direction in the proceedings leading to this appeal had the benefit of hearing the entirety of the oral evidence upon which the direction was based before reaching the said direction.
3.12 P.D. Damulak C.J. was not on the panel on 30th June, 2016 when two of the defendant’s witnesses (DW1 and DW2) were heard. (Page 341 of the record of appeal). Yusuf Ali, SAN was not on the panel on 14th April, 2016 when PW1 gave evidence, and PW2 gave evidence in chief (Page 310 of the record of appeal), on 30th June, 2016 when DW1 and DW2, gave evidence (Page 341 of the record of appeal) and on 27th October, 2016 when DW3 gave evidence (Page 351 of the record of appeal).
3.13 Ukala, SAN was not on the panel on 8th May, 2016 when PW2 concluded his evidence, on 30th June, 2016 when DW1 and DW2 testified, and on 27th October, 2017, when DW3 gave evidence. Inuwa-Dutse was also not on the panel on 14th April, 2016 when PW1 testified.
He argues, on these facts, that his right to fair hearing had been violated or comprised. It is settled that proceedings of a disciplinary committee of a professional body, as the LPDC is quasi-judicial and is quasi-criminal in nature and so the body shall observe all the rules of fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, and the principles of natural justice:L.P.D.C. v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Okike v. LPDC (2005) 15 NWLR (Pt. 949) 471. Accordingly, the absence of fair hearing and/or violation of this fundamental procedure renders the decision of the judicial or quasi-judicial body a nullity, no matter how well delivered; Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 75) 201; Otwiwa v. Kwaseko (1937) 3 (WACA) 230; Egba N.A. v. Adeyanju (1936) 13 NLR 77; Damoah v. Taibil (1947) 12 WACA 167; Runka v. Katsina N.A. (1950).13 WACA 98.
It is also settled that it is not permitted for a judge or quasi-judicial body to decide without hearing the facts on which the decision predicates. The rationale for this, per Mc Donald, J. in R. v. Hallifax City Committee on Works, Ex. P. Johnsonton (1962) DLR (2d) 45 at 47 is that bias and ignorance alike preclude fair judgment upon the merits. Put affirmatively; he who decides on facts must hear the evidence on which the decision is premised.
It is not permissible, as well as unreasonable, for the judex to act on hearsay evidence of the proceedings.
The appellant submits, on authority of Adeigbe & Anor. v. Kusimo & Ors (1965) 4 NSCC 188; Sokoto State Government v. Kamdex(Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466 (SC) at 489; Arum v. Nwobodo (2013) LPELR -2039 (SC), (2013) 10 NWLR (Pt. 1362) 374, that where a Court or judicial body is differently constituted during the hearing of a case, or on various occasions when it sat or when one member did not hear the whole evidence (or part of the whole evidence), the effect on the proceedings is to render them null and void. The vitiating factor is the fact of the judex deciding on the evidence or testimony he did not hear; and the decision depends basically on the evaluation of the totality of the evidence and the key ingredient to be considered is the credibility of witnesses where demeanour forms an integral part of that evaluation. See Mogaji v. Odofin (1978) 4 SC 91; Boy Muka v. The State (1976) 9-10 SC 305.
The procedure adopted by the LPDC in the trial of the appellant, whereby the panel was continually reconstituted and some members who never at all heard the evidence participated in taking the decision, culminating in the direction, was criticized and condemned for tantamounting to denial of fair hearing in Nwalutu v. LPDC (2019) All FWLR (Pt. 997) 68, (2019) 8 NWLR (Pt. 1673) 174; Kunle Kalejaiye v. LPDC (2019) LPELR-47035 (SC), (2019) 8 NWLR (Pt. 1674) 365 which cited, with approval, the principle established in the cases of Adeigbe & Anor. v. Kusimo & Ors. (1965) LPELR-25226 (SC); Ubwa v. Tiv Traditional Council (2004) 11 NWLR (Pt. 884) 427; Sokoto State Government v. Kamdex (Nig.) Ltd. (supra). On the principle of stare decisis these weighty authorities are compelling and they must be followed as I did in SC.334/2019 and SC.454/2018 just delivered today, 18th June, 2021.
The 2nd respondent had submitted on the authority of Ndukwe v. LPDC (2007) 5 NWLR (Pt. 1026) 1 that “mere variation in the composition of a panel of tribunal or Court; which does not affect the substance of the inquiry cannot touch or affect the judgment or decision of such a body neither does such variation render the judgment or decision a nullity.” The issue in Ndukwe v. LPDC (supra) was whether a person or persons who were not part of the panel that took the decision can read or deliver the decision on behalf of those that took the decision. Such reading or delivery of decision of another does not actually “affect the substance of the inquiry.” This is not the situation in the instant case. Ndukwe v. LPDC is clearly distinguishable therefore. A proper reading of Section 11 of the Legal Practitioners Act, Cap. L.11, 2004, particularly subsection thereof, supports the judicial authorities above referred. It provides, inter alia, that “no person shall be a member of the Disciplinary Committee for the purpose of reaching a decision which has been deferred or further deferred unless he was present, as a member of the Committee, when the decision was deferred.”
My Lords, the appellant has made out a case warranting the interference of this Court on this issue. The appellant’s right to fair hearing was denied and/or compromised. It was perverse of the LPDC to have allowed members who did not hear all the evidence or part of the evidence to participate in the taking of the decision, culminating in the direction that was predicated on the credibility of the totality of the evidence. Accordingly, I allow the appeal. The decision including the direction of the LPDC dated 22nd May, 2017 and the entire proceedings leading thereto being a nullity, are hereby set aside. The matter is hereby remitted to a panel differently constituted for hearing de novo.
SC.469/2017
