Effect of Inconsistent Composition of the Legal Practitioners Disciplinary Committee Panel
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 5th Day of February, 2021
Before Their Lordships
Musa Dattijo Muhammad
Helen Moronkeji Ogunwumiju
Emmanuel A. Agim
Justices, Supreme Court
Gabriel Gbenoba Esq. Appellants
- Legal Practitioners Disciplinary Committee
- Nigerian Bar Association Respondents
“THE LPDC IS NOT A STAR CHAMBER OR KANGAROO COURT DOING WISHY WASHY JUSTICE. THERE MUST BE CERTAINTY IN THE COMPOSITION AND CONSISTENCY OF ITS PANEL. THE MORAL FORCE OF ITS DIRECTIONS RESTS ON THE CALIBRE OF THE PEOPLE WHO TOOK THE FINAL DECISION TO DEPRIVE A LEGAL PRACTITIONER OF HIS MEANS OF LIVELIHOOD.”
(Lead judgement delivered by Honourable Helen Moronkeji Ogunwumiju, JSC)
A certain Mrs. Olatimbo Ayinde, the Managing Director/Chief Executive Officer of Tubbs Marine and Energy (“Petitioner”) wrote a petition against the Appellant to the Nigerian Bar Association alleging professional misconduct. She alleged that she engaged the legal services of the Appellant to undertake the perfection of the Company’s Deed of Assignment over a certain property and after the Appellant received the sum of N7,500,000.00 (Seven Million, Five Hundred Thousand Naira) she paid him for the purposes of carrying out the instruction, the Appellant abandoned the instruction and failed to account for the money or refund it.
The 2nd Respondent forwarded the petition to the Appellant for his reaction and the Appellant responded to the petition. Thereafter, the 2nd Respondent concluded that a prima facie case had been made against the Appellant and referred him to the 1st Respondent for trial. The Appellant was charged before the 1st Respondent on a three-count complaint by the 2nd Respondent for engaging in conduct unbecoming of a legal practitioner.
There were variations in the composition of the members of the 1st Respondent during the proceedings. At the close of the trial, the 1st Respondent found the Appellant liable for professional misconduct and directed that his name be struck off from the Roll of Legal Practitioners in Nigeria. Dissatisfied, the Appellant appealed to the Supreme Court.
Issues for determination
In its resolution of the appeal, the Supreme Court considered the following issues.
- Whether there was investigation by the 2nd Respondent to find out if a prima facie case was made out before the matter was referred to the 1st Respondent for trial.
- Having regard to the variation in the composition of the 1st Respondent at various times during the proceedings, whether its directions was not totally in breach of the Appellant’s right to fair hearing and all together, null and void.
- Whether the findings of the 1st Respondent were supported by credible and admissible evidence.
On the first issue, counsel for the Appellant argued that it is when the Nigerian Bar Association (“NBA”) had previously investigated the case against a legal practitioner that it will refer its findings by way of a report to the Legal Practitioners Disciplinary Committee (“LPDC”) indicating that a prima facie case has been made out against the legal practitioner. He submitted that the 2nd Respondent did not set up any panel to investigate the petition against the Appellant before forwarding the case to the 1st Respondent for trial and this was a clear violation of the laid down procedure which rendered the proceedings of the Committee null and void. In response, counsel for the 2nd Respondent submitted that there is no specific mode of investigating a petition; so long as it was investigated, it need not follow a particular format. He argued that the Appellant was served by the 2nd Respondent with a copy of the petition, and he responded to it. He argued further that the 2nd Respondent duly investigated and considered the petition against the Appellant and his response thereof and was satisfied that a prima facie case of professional misconduct had been made against him before the case was referred to the 1st Respondent for trial.
On the second issue, it was argued on behalf of the Appellant that the composition of members of the 1st Respondent that sat on the petition against the Appellant varied throughout the proceedings, particularly on important dates in the proceedings such as the dates of the taking of plea, objections, evidence and rendering of Directions. He submitted that a court/tribunal/administrative body is incompetent if the composition of its members is irregular from the beginning of hearing to judgment and it was erroneous in law for the members of the 1st Respondent who did not participate fully in the proceedings and trial leading to the Directions to be called upon to determine the fate of the Appellant without hearing him and other witnesses in the matter. Conversely, respective counsel for the 1st and the 2nd Respondents argued that a mere variation in the composition of the Committee at various sittings did not affect the legality of the proceedings of the 1st Respondent and cannot render the judgment a nullity. They submitted that at each hearing, there was always full quorum of persons belonging to the class of persons who are required to be members of the Committee present for the sitting in accordance with the Legal Practitioners Act, and the Appellant failed to demonstrate any miscarriage of justice he suffered as a result of the variation in the composition of the panel.
Arguing the third issue, counsel for the Appellant contended that the two letters consisting of the Petition of Mrs. Olatimbo Ayinde and another letter of petition of a certain Victoria Folakemi Akinlabi were tendered by PW1, an Assistant Secretary of the 1st Respondent who admitted that he had no knowledge of the details of the transaction between the parties and he was not a party to same. Counsel argued that the evidence of PW1 amounted to documentary hearsay and was inadmissible as the relevant persons who made the statements and documents, he tendered ought to have been called to speak to the documents. He submitted that there was no valid evidence to prove that the Appellant committed professional misconduct and the non-appearance of the Petitioners was tantamount to an abandonment of the petition. He cited DICKSON v SYLVIA (2017) 8 NWLR (Pt. 1567) 167 at 234, paras. F-G. In reaction, both counsel for the Respondents argued that the nominal complainants need not give evidence to prove the complaints. They contended that it was too late in the day for the Appellant to object to the admission of the documents admitted by the 1st Respondent through PW1 and the Appellant’s failure to object to the said documents during trial amounts to a waiver of his right to oppose them. Counsel cited NASIR v CSC KANO & ORS (2010) LPELR-1943 (SC).
Court’s Judgement and Rationale
In its determination of the first issue, the court relied on its decision in CHARLES OKIKE v LPDC (2005) 7 SC (Pt. 111) 75 where it held that there is no provision in the rules that the NBA must inform a legal practitioner against whom a petition was made how it went about its investigation, so long as he was given an opportunity to defend the accusations made against him.
The court held that it was clear from the record that the 2nd Respondent forwarded the Petitioner’s complaint to the Appellant, and he responded to the complaint, and it was after the 2nd Respondent had carried out its investigation on the petition and found that a prima facie case had been made out against the Appellant it forwarded a formal complaint to the LPDC for the trial of the Appellant for professional misconduct.
Deciding the second issue, the court held that where there is variation in the constitution of a panel that sat on a matter at different times, it adversely affects jurisdiction, and the trial will be a nullity. The court relied on EGBA N.A. v ADEYANJU (1936) 13 NLR 77. A person or authority cannot be substituted or appear in addition to deliver a ruling, direction, or judgment if that person or authority did not participate in hearing the facts and arguments that led to the conclusion. This will breed injustice and gross miscarriage of justice will be the consequence – OBIAJULU NWALUTU v NBA & ANOR (2019) LPELR-46916 SC.
Guided by the authorities above, the Supreme Court held that the LPDC is a quasi-judicial body and not merely an administrative body hence it must conduct its proceedings in accordance with the rules of natural justice and fair hearing. The LPDC is not a Star Chamber or Kangaroo court doing wishy washy justice. There must be certainty in the composition and consistency of its panel. The moral force of its Directions rests on the calibre of the people who took the final decision to deprive a legal practitioner of his means of livelihood. The court held that the directions agreed to by several members of the 1st Respondent who were not present during and throughout the proceedings did not meet the basic requirement of fair hearing as entrenched in the constitution.
On the third issue, the court relied on its decision in LPDC v GANI FAWEHINMI (1985) 2 NWLR (Pt. 7) 300 at 383-384 and held that the LPDC which exercises the important function of considering and determining cases of misconduct alleged against legal practitioners must only consider valid and credible evidence adduced before it upon which to base its decision to disbar the legal practitioner. By Rule 10(2) of the LPDC Rules, it is clear that the Evidence Act shall apply in civil proceedings. By the rules of evidence, without a witness adopting and speaking to a petition to prove the truth of its contents, it is documentary hearsay and inadmissible as credible evidence of its contents. The petition tendered by PW1 and admitted by the 1st Respondent had absolutely no probative value in the absence of the Petitioner who could speak to it. The documents were inadmissible in the absence of an opportunity for the Appellant to cross-examine the Petitioner and no probative value can be attached to them because there was no opportunity to judge its cogency, consistency with other evidence, or the credibility of an absent witness whose demeanour, personality had not been subjected under the fire of cross-examination to the court’s scrutiny.
Adamson Adeoro with Teslim Dauda for the Appellant.
Adedayo Adedeji with Abdulkareem Audu and M.C. Ezeobidi for the 1st Respondent.
Anozie Obi with Enwezor Nonye for the 2nd Respondent.
Reported by Optimum Publishers Limited
Publishers of the Nigerian Monthly Law Report (NMLR)
(An affiliate of Babalakin & Co.)