-
NWALUTU v. NBA & ANOR
CITATION: (2019) LPELR-46916(SC)
In the Supreme Court of Nigeria
ON THURSDAY, 21ST FEBRUARY, 2019Suit No: SC.30/2016
Before Their Lordships:
WALTER SAMUEL NKANU ONNOGHEN Justice of the Supreme
CourtOLUKAYODE ARIWOOLA Justice of the Supreme CourtKUMAI BAYANG
AKA'AHS Justice of the Supreme CourtEJEMBI EKO Justice of the
Supreme CourtSIDI DAUDA BAGE Justice of the Supreme Court
BetweenOBIAJULU NWALUTU - Appellant(s)
And1. NIGERIAN BAR ASSOCIATION2. LEGAL PRACTITIONERS
DISCIPLINARYCOMMITTEE
- Respondent(s)
RATIO DECIDENDI1. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of
issue(s) for determination not distilled from or related to
ground(s) of appeal"Since the appellant did not file a reply in
answer to the preliminary points raised by the 1st respondent, he
isdeemed 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 will refuse to consider and pronounce on an
issueformulated for determination which does not arise from the
grounds of appeal filed. See: Aja v. Okoro (1991) 7NWLR (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
struckout."Per AKA'AHS, J.S.C. (Pp. 6-7, Paras. E-B) - read in
context
(201
9) LP
ELR-
4691
6(SC
)
-
2. COURT - COMPOSITION OF COURT: Effect of a variation in the
composition of a court/tribunal"Apart from the composition of the
Committee, learned counsel for the appellant argued that where the
panel thatsat and heard a matter is different from the panel that
delivered judgement in the same matter, the effect on
theproceedings is to render them null and void.Learned counsel for
the respondents conceded that the membership of the 2nd respondent
varied and that it isonly the Chairman that was constant in all
sittings but argued that since the quorum of the Committee was 5
andthat number was retained throughout, the proceedings and
direction are valid and proper, as it did not occasion amiscarriage
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 anelection petition where the 1999
Constitution, the Schedule to the Constitution and the Schedule to
the ElectoralAct, 2006 provided for the composition and quorum of
the National Assembly and the Governorship and LegislativeHouses
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
ElectionTribunals shall be as set out in the Sixth Schedule to this
Constitution.(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 electionpetition is disabled by illness or otherwise, the
hearing may be recommended and concluded by another Chairmanof 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 hasprepared its judgment but the Chairman or the Presiding
Justice is unable to deliver it due to illness or any othercause,
the judgement may be delivered by one of the members, and the
judgment as delivered shall be thejudgment of the Tribunal or Court
and the member shall certify the decision of the Tribunal or Court
to the ResidentElectoral Commissioner or to the Commission".Since a
quorum was formed with the Chairman and proceedings had been taken
up to when judgment was written,a new Chairman in the absence of
the original Chairman could be appointed to deliver the judgment.
In contrastwith the above provisions, Section 11(2) of the Legal
Practitioners (Amendment) Decree No. 21 of 1994enumerates the
persons who can constitute the Legal Practitioners Disciplinary
Committee without stating howmany of them can form a quorum.
Notwithstanding the fact that the Chairman was present throughout
from thetime the appellant took his plea in which he denied being
liable to the charge of professional misconduct right upto 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 thefinal direction was delivered (see page 285 of
the records). It was only J. B. Daudu Esq. the Chairman and
TijjaniInuwa-Dutse, a member that were present throughout the
proceedings. Where a Court of tribunal is differentlyconstituted
during the hearing of the case, or on various occasions when it
met, or where one member did not hearthe whole evidence, the effect
on the 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."Per AKA'AHS, J.S.C.(Pp. 21-25, Paras. F-B) - read in
context
3. COURT - COMPOSITION OF COURT: Effect of a variation in the
composition of a court/tribunal"I have to add that the current law
applicable to the composition of the Legal Practitioners
Disciplinary Committeeof the Body of Benchers, inter alia, is Legal
Practitioners Act, 2004 (incorporating the provisions of the
LegalPractitioners) Amendment Decree No. 21, 1994) published as
Supplementary to the Laws of the Federation, 2004which made the
Committee that dealt with this matter properly constituted and
clothed with the necessaryjurisdiction to hear and determine the
complaints of professional misconduct against appellant. However,
theproblem in this appeal lies in panels that heard the matter
being different from that which eventually delivered thedecision.
It is the contention of appellant that this is a fundamental defect
which renders the proceedings anddecision reached therein a
nullity. The record of proceedings reveals that the membership of
the 2nd respondentvaried at the sittings except the Chairman of the
Committee who sat throughout the trial of appellant. This fact
isnot denied by the respondents. What the above facts mean is that
it was not all the members of the Committeethat heard the witnesses
testify nor watched their demeanour. It is settled law that where a
Court or tribunal orpanel or committee is differently constituted,
as in this case; during the hearing/trial of a case or on
variousoccasions when it sat, or where one member did not hear the
whole evidence, again as in this case, the effect onthe proceedings
including the decision arrived therein is to render them null and
void and of no legal effectwhatsoever. See Ubwa vs. Tiv Traditional
Council & Ors (2004) 11 NWLR (pt. 884) 427; Sokoto State
Governmentvs. Kamdex (Nig) Ltd (2007) 7 NWLR (pt. 1034) 466."Per
ONNOGHEN, J.S.C. (Pp. 27-29, Paras. F-C) - read in context
(201
9) LP
ELR-
4691
6(SC
)
-
4. COURT - COMPOSITION OF COURT: Effect of a variation in the
composition of a court/tribunal"I need only add that a Disciplinary
Committee comprising several members cannot be said to have, as a
body,given a Legal Practitioner being tried for infamous conduct
fair trial if, as it is revealed in this case, only onemember (the
Chairman of the Committee) consistently sat and took evidence on
all the dates the witnessestestified. The issue is not whether the
Committee, as constituted, had the proper quorum. Rather, it is
whether themembers of the Committee, except the Chairman, who did
not hear all the evidence constituting the totality of theevidence
in the proceedings can, with all honesty, decide whether or not the
Appellant committed the allegedmisconduct or infamous conduct on
the evidence they did not hear the witnesses testify on. The point
I amemphasising is that the Legal Practitioners Disciplinary
committee (LPDC) is not an appellate, but a first instancepanel. On
what evidence does the absentee panelist evaluate the totality of
the evidence before coming to hisdecision? This Court in several
decisions, including DIM v. ENEMO (2009) 42 WRN 1, (2009) 10 NWLR
(pt. 1149) 353at 396, has established what evaluation and
ascription of probative value to the testimony of a witness
entailsthus:The evaluation and ascription of probative value to the
testimony of a witness is within exclusive domain of thetrial Court
that heard and watched the witnesses testify before it. To
determine whether a testimony has probativevalue, the Court takes
into consideration whether the testimony is cogent, consistent and
in accord with reasonand in relation to other evidence before it.
The Court takes into consideration the demeanor, personality,
undercross- examination in the determination of the issue of
credibility of a witness. A determination of the Court
ofcredibility is almost sacred. See also ONWUKA & ORS v. EDIALA
& ORS (1989) 1 NWLR (pt. 96) 1282;(1989) 1 NSCC65. It appears
to me, and I so hold, that when a absent panelist relies on the
colleague present when a witness(es)testified to render an opinion
that such opinion is premised on hearsay evidence and it is
perverse. A decision inthe circumstance is nothing but a travesty
of justice. In such circumstance, also, it cannot be said that the
persontried by the LPDC had received fair trial. Fair hearing, as
this Court has consistently held, involves a fair trial and afair
trial of a case consists of the whole hearing. There is no
difference between the two: KANO N. A. v. OBIORA(1959) 1 NSCC 189;
(1959) SCNLR 577; MOHAMMED v. KANO N.A. (1968) 1 ALL NLR 424;
UNONGO v. AKU (1983) 2SCNLR 332 at 362 - 363; OGBOH & ANOR. v.
FRN (2002) LPELR - 2285 (SC)."Per EKO, J.S.C. (Pp. 30-32, Paras.
A-C) -read in context
5. EVIDENCE - WRITTEN STATEMENT ON OATH: Effect of a written
statement on oath which has not beenformally adopted by a
prospective or potential witness"One important aspect of this case
is that Chief A. A. Aribisala SAN who initiated the petition
against the appellantdid not appear before the Committee to adopt
his witness depositions. His non appearance before the Committeeis
tantamount to him abandoning the petition. The appearance of Zibai
Blessed Katung, the Assistant Secretary ofthe Body of Benchers who
adopted his witness statement on Oath cannot take the place of
Chief A. A. AribisalaSAN and despite the deposition in paragraph 11
of his written statement that - "That from what I read in
thedocuments 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 lawsrelevant thereto". this would only be a matter of
opinion and the only people who could substantiate the allegationof
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 ortribunal" as envisaged under Section 33 (1) of the
Constitution of the Federal Republic of Nigeria 1979 is more thanan
administering authority of the type envisaged under Section 33(2)
thereof. In the unanimous decision of thisCourt in L.P.D.C v.
Fawehinmi supra it was held that the Legal Practitioners
Disciplinary Committee which exercisesthe important function of
considering and determining cases of misconduct alleged against
legal practitionersshould in every step they take in this important
sphere of human activity be guided by the immortal principles
ofeternal or natural justice. There must be valid and credible
evidence adduced before the Legal PractitionersDisciplinary
Committee upon which it will base its direction of suspending the
appellant from engaging in legalpractice for 5 years. As rightly
observed by the Legal Practitioners Disciplinary Committee, Chief
A. A. Aribisala SANremains a proposed witness who did not appear to
adopt his deposition. It was therefore wrong to use a
documentattached to the deposition in finding the appellant guilty
when the said document was not properly tendered beforethe Legal
Practitioners Disciplinary Committee."Per AKA'AHS, J.S.C. (Pp.
25-27, Paras. B-B) - read in context
(201
9) LP
ELR-
4691
6(SC
)
-
6. LEGAL PRACTITIONER - LEGAL PRACTITIONERS DISCIPLINARY
COMMITTEE: Proper composition of the LegalPractitioners’
Disciplinary Committee of the Body of Benchers"Before the decision
of this Court in Legal Practitioners Disciplinary Committee v.
Chief Gani Fawehinmi (1985) 2NWLR (Pt. 7) 300 ; (1985) 2 NSCC Vol.
16 page 998, the Legal Practitioners Act No. 15 of 1975 provided in
Section10 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' DisciplinaryCommittee (in this Act referred to
as "the Disciplinary Committee") which shall be charged with the
duty ofconsidering and determining any case where it is alleged
that a person whose name is on the roll has misbehavedin 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 ofthe 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 ofNigeria 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 DisciplinaryCommittee (in this Act referred to as
"the Disciplinary Committee") which shall be charged with the duty
ofconsidering and determining any case where it is alleged that a
person who is a member of the legal professionhas 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 ofthe 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
alegal 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 ofthe
Federation was the Chairman of the Disciplinary Committee and also
initiated disciplinary proceedings againstthe respondent. The
respondent applied to Court for an order prohibiting the
Disciplinary Committee as constitutedfrom hearing the charges of
professional misconduct preferred against him having regard to the
principles ofnatural justice embedded in the principle of nemo
judex in causa sua (no one can be judge in his own cause).
Inseeking the order, the respondent based his application on
Section 42 (3) of the 1979 Constitution and sought forthe
enforcement of his fundamental right to fair hearing under Section
33 of the Constitution. He predicated hiscomplaint on the
likelihood of bias since the Attorney-General and 3 other members
of the Committee had activelyparticipated in investigating the
matter and had in an earlier occasion expressed strong opinions
against therespondent. The trial Judge found for the respondent and
the Court of Appeal dismissed the appeal filed by theCommittee. On
a further appeal to the Supreme Court, the appeal was dismissed.
The Court held that in theexercise of its disciplinary authority
over erring legal practitioners, the Legal Practitioners
Disciplinary Committeemust observe the rules of natural justice and
in that context, it must not only avoid bias but also the
likelihood ofbias. Thus the Attorney-General of the Federation has
ceased to be the Chairman of the Disciplinary Committee.Any
direction given by the Disciplinary Committee against a legal
practitioner invariably is challenged at theSupreme Court and this
is the rationale for excluding the Chief Justice and Justices of
the Supreme Court frombeing members of the Disciplinary Committee.
Where any of the members listed in Section 11 (2) (b)-(e) is
acomplainant 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 DecreeNo.
21 of 1994 was repealed in Aladejobi v. Nigerian Bar Association
(2013) 15 NWLR (PT. 1376) 66 and RotimiWilliams Akintokun v. Legal
Practitioners Disciplinary Committee (2014) 13 NWLR (Pt. 1423)1.
The issue which thisCourt dealt with in the two appeals was that an
appeal from the direction given by the Disciplinary Committeeshould
be lodged with the Appeal Committee of the Body of Benchers as
provided under Section 12 (1) & (2) of theLegal Practitioners
Act Cap. L 11, Laws of the Federation of Nigeria 2004. The two
decisions have in no wayaffected the composition of Legal
Practitioners Disciplinary Committee as currently constituted. The
argumentadvanced by learned counsel for the appellant in paragraph
5.4 of his brief that the extant law dealing with thecomposition of
the Disciplinary Committee of the Body of Benchers is Section 10 of
the Legal Practitioners Act CAPL 11 Laws of the Federation of
Nigeria 2004 which has the Attorney-General of the Federation as
Chairman istherefore not correct. The extant law which is in
operation is the Legal Practitioners Act 2004 (incorporating
theprovisions of the Legal Practitioners) (Amendment) Decree No 21,
1994) published as Supplementary to the Lawsof 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
properlyconstituted and had the requisite jurisdiction when it sat
and heard the complaint of professional misconductagainst the
appellant."Per AKA'AHS, J.S.C. (Pp. 16-21, Paras. C-E) - read in
context
(201
9) LP
ELR-
4691
6(SC
)
-
KUMAI BAYANG AKAAHS, J.S.C. (Delivering the
Leading Judgment): 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.
1
(201
9) LP
ELR-
4691
6(SC
)
-
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
2
(201
9) LP
ELR-
4691
6(SC
)
-
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
o f t h e a p p e l l a n t s o a s t o r e n d e r t h e
decisions/directions dated 30 November, 2015
altogether null and void.
(b) Whether the composit ion 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
3
(201
9) LP
ELR-
4691
6(SC
)
-
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
4
(201
9) LP
ELR-
4691
6(SC
)
-
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
(201
9) LP
ELR-
4691
6(SC
)
-
5
(201
9) LP
ELR-
4691
6(SC
)
-
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
6
(201
9) LP
ELR-
4691
6(SC
)
-
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
7
(201
9) LP
ELR-
4691
6(SC
)
-
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 person’s
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
8
(201
9) LP
ELR-
4691
6(SC
)
-
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
9
(201
9) LP
ELR-
4691
6(SC
)
-
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
10
(201
9) LP
ELR-
4691
6(SC
)
-
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
11
(201
9) LP
ELR-
4691
6(SC
)
-
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
12
(201
9) LP
ELR-
4691
6(SC
)
-
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
13
(201
9) LP
ELR-
4691
6(SC
)
-
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. Aribisala’s 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
14
(201
9) LP
ELR-
4691
6(SC
)
-
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
15
(201
9) LP
ELR-
4691
6(SC
)
-
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
16
(201
9) LP
ELR-
4691
6(SC
)
-
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
17
(201
9) LP
ELR-
4691
6(SC
)
-
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
18
(201
9) LP
ELR-
4691
6(SC
)
-
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 context, it must not only avoid bias but also the
likelihood of bias. Thus the Attorney-General of the
Federation has ceased to be
19
(201
9) LP
ELR-
4691
6(SC
)
-
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
20
(201
9) LP
ELR-
4691
6(SC
)
-
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
21
(201
9) LP
ELR-
4691
6(SC
)
-
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.
22
(201
9) LP
ELR-
4691
6(SC
)
-
(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
23
(201
9) LP
ELR-
4691
6(SC
)
-
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
24
(201
9) LP
ELR-
4691
6(SC
)
-
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".
25
(201
9) LP
ELR-
4691
6(SC
)
-
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
26
(201
9) LP
ELR-
4691
6(SC
)
-
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.
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have
had the benefit of reading in draft, the lead judgment of my
learned brother AKA'AHS, JSC just delivered.
I agree with his reasoning and conclusion that the appeal
has merit and should be allowed.
I have to add that the current law applicable to the
27
(201
9) LP
ELR-
4691
6(SC
)
-
composition of the Legal Practitioners Disciplinary
Committee of the Body of Benchers, inter alia, is 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,
2004 which made the Committee that dealt with this matter
properly constituted and clothed with the necessary
jurisdiction to hear and determine the complaints of
professional misconduct against appellant.
However, the problem in this appeal lies in panels that
heard the matter being different from that which eventually
delivered the decision. It is the contention of appellant
that
this is a fundamental defect which renders the proceedings
and decision reached therein a nullity. The record of
proceedings reveals that the membership of the 2nd
respondent varied at the sittings except the Chairman of
the Committee who sat throughout the trial of appellant.
This fact is not denied by the respondents.
What the above facts mean is that it was not all the
members of the Committee that heard the witnesses testify
nor watched their demeanour. It is settled law that where
a
28
(201
9) LP
ELR-
4691
6(SC
)
-
Court or tribunal or panel or committee is differently
constituted, as in this case; during the hearing/trial of a
case or on various occasions when it sat, or where one
member did not hear the whole evidence, again as in this
case, the effect on the proceedings including the decision
arrived therein is to render them null and void and of no
legal effect whatsoever. See Ubwa vs. Tiv Traditional
Council & Ors (2004) 11 NWLR (pt. 884) 427; Sokoto
State Government vs. Kamdex (Nig) Ltd (2007) 7
NWLR (pt. 1034) 466.
It is for the above reasons and the more detailed reasons
contained in the said lead judgment of my learned brother
that I too find merit in this appeal and allow same.
Appeal Allowed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of
reading in draft the lead judgment of my learned brother
Aka'ahs, JSC just delivered. I agree entirely with the
reasoning therein and the conclusion arrived thereat, that
the appeal is meritorious and should be allowed. I too will
allow the appeal.
Appeal allowed.
EJEMBI EKO, J.S.C.: I read in draft the judgment just
delivered in this appeal by my learned brother, KUMAI
29
(201
9) LP
ELR-
4691
6(SC
)
-
BAYANG AKA'AHS, JSC. I adopt the judgment since it
represents my views in the appeal.
I need only add that a Disciplinary Committee comprising
several members cannot be said to have, as a body, given a
Legal Practitioner being tried for infamous conduct fair
trial if, as it is revealed in this case, only one member
(the
Chairman of the Committee) consistently sat and took
evidence on all the dates the witnesses testified. The issue
is not whether the Committee, as constituted, had the
proper quorum. Rather, it is whether the members of the
Committee, except the Chairman, who did not hear all the
evidence constituting the totality of the evidence in the
proceedings can, with all honesty, decide whether or not
the Appellant committed the alleged misconduct or
infamous conduct on the evidence they did not hear the
witnesses testify on. The point I am emphasising is that the
Legal Practitioners Disciplinary committee (LPDC) is not an
appellate, but a first instance panel. On what evidence does
the absentee panelist evaluate the totality of the evidence
before coming to his decision? This Court in several
decisions, including DIM v. ENEMO (2009) 42 WRN 1,
30
(201
9) LP
ELR-
4691
6(SC
)
-
(2009) 10 NWLR (pt. 1149) 353 at 396, has established
what evaluation and ascription of probative value to the
testimony of a witness entails thus:
The evaluation and ascription of probative value to
the testimony of a witness is within exclusive domain
of the trial Court that heard and watched the
witnesses testify before it. To determine whether a
testimony has probative value, the Court takes into
consideration whether the testimony is cogent,
consistent and in accord with reason and in relation
to other evidence before it.
The Court takes into consideration the demeanor,
personality, under cross- examination in the
determination of the issue of credibility of a witness.
A determination of the Court of credibility is almost
sacred.
See also ONWUKA & ORS v. EDIALA & ORS (1989) 1
NWLR (pt. 96) 1282;(1989) 1 NSCC 65. It appears to
me, and I so hold, that when a absent panelist relies on the
colleague present when a witness(es) testified to render an
opinion that such opinion is premised on hearsay evidence
and it is perverse. A decision in the circumstance is
nothing
but a travesty of justice. In such circumstance, also, it
31
(201
9) LP
ELR-
4691
6(SC
)
-
cannot be said that the person tried by the LPDC had
received fair trial. Fair hearing, as this Court has
consistently held, involves a fair trial and a fair trial of
a
case consists of the whole hearing. There is no difference
between the two: KANO N. A. v. OBIORA (1959) 1
NSCC 189; (1959) SCNLR 577; MOHAMMED v. KANO
N.A. (1968) 1 ALL NLR 424; UNONGO v. AKU (1983) 2
SCNLR 332 at 362 - 363; OGBOH & ANOR. v. FRN
(2002) LPELR – 2285 (SC).
Finally, the trial of the Appellant being quasi-judicial,
his
"conviction" for professional misconduct or infamous
conduct can only be sustained upon legal evidence properly
admitted in the proceedings. No amount of hearsay
evidence, be it documentary or oral, can take the place of
proper legal evidence. In the instant case; notwithstanding
the fact that Chief A. A. Aribisala SAN, whose petition
initiated the proceedings, had abandoned same by his
failure and/or refusal to appear at the LPDC, the LPDC
acted on the same as it was adopted by one Zibai Blessed
Katung before it. At best the petition and/or its existence
constituted only real evidence. The substance and the truth
of contents of the
32
(201
9) LP
ELR-
4691
6(SC
)
-
petition, as presented to the LPDC by the said Zibai Blessed
Katung, would amount to nothing but proffering hearsay
evidence.
The flaws in the direction of the LPDC pointed out above
and in the lead judgment of my learned brother, KUMAI
BAYANG AKA'AHS, JSC, which I adopt, inform my allowing
the appeal and entering in favour of the Appellant an order
acquitting and discharging him of the alleged professional
misconduct.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of
reading in draft the lead Judgment of my learned brother
Kumai Bayang Akaahs, JSC, just delivered. I agree entirely
with the reasoning and conclusion reached. I do not have
anything useful to add. I find merit in this appeal, it is
hereby allowed by me. I abide by all the orders contained in
the lead Judgment.
33
(201
9) LP
ELR-
4691
6(SC
)
-
Appearances:
H. Kareem, Esq. For Appellant(s)
M. E. Oru, Esq. with him, Messrs Lawrence Johnand Noah Adanu for
1st Respondent.
Anozie Obi, Esq. with him, Messrs R. A. C. Ukoand Lonji Ayuba
for 2nd Respondent ForRespondent(s)
(201
9) LP
ELR-
4691
6(SC
)
