Says “If Okike Was Constitutionally Wrong, Why Did It Stand For More Than Two Decades?”
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A senior member of the Bar, Chief Jibrin Samuel Okutepa, SAN, has called for the reconsideration of the recent decision of the Supreme Court in Ben Mene-Ejegi v Nigerian Bar Association & Anor, SC/481/2018, in which a majority of the court departed from its earlier decision in Okike v Legal Practitioners Disciplinary Committee (No. 1) and held that it lacks jurisdiction to entertain an appeal brought directly from the Legal Practitioners Disciplinary Committee.
He said the decision raises an important question about constitutional interpretation, judicial precedent and the stability of the law governing professional discipline at the Nigerian Bar, and that, with the greatest respect to the majority, it deserves serious reconsideration.
The senior advocate began with the authority of the decision that has now been overruled, reported as Okike v LPDC (No. 1) (2005) 15 NWLR (Pt. 949) 471.
“The significance of Okike lies not merely in the conclusion reached, but in the authority behind that conclusion,” he said. “The case was determined by a full panel of seven Justices of the Supreme Court, and the Court unanimously recognised the jurisdiction of the Supreme Court to entertain an appeal arising directly from the Legal Practitioners Disciplinary Committee.”
He stressed that the point was squarely before the court on that occasion and was not decided in passing.
“The Court was therefore not dealing with an accidental or incidental exercise of jurisdiction. The issue was before it and was judicially determined. Indeed the Supreme Court raised suo motu the jurisdictional point, and it decided the matter after full consideration of the same point Ben Mene-Ejegi decided. That is precisely why the subsequent departure in Mene-Ejegi is jurisprudentially significant.”
Turning to the reasoning of the majority, he set out the holding before identifying what he regards as its central weakness.
“The majority in Mene-Ejegi held that Section 12(7) of the Legal Practitioners Act, insofar as it purports to provide for a direct appeal from the LPDC to the Supreme Court, is inconsistent with Sections 233 and 240 of the Constitution and is consequently void to the extent of that inconsistency. The majority considered that the Constitution exhaustively defines the appellate jurisdiction of the Supreme Court and that legislation cannot enlarge it.”
“But therein lies the difficulty. The very constitutional architecture now relied upon by the majority was available when Okike was decided. The exact issue raised in Ben Mene-Ejegi was fully raised and decided by the Supreme Court.”
He pointed out that the constitutional provision in question is not of recent origin: “Section 233 of the Constitution was not subsequently enacted to create the difficulty. The seven Justices who decided Okike were therefore interpreting the constitutional and statutory framework substantially in the same legal environment.”
From that he drew the question at the centre of his argument: “If Okike was constitutionally wrong, the question arises: why was it wrong for more than two decades, despite the subsequent opportunities of the Supreme Court to correct it?”
The senior advocate said the difficulty is compounded by the decisions that followed, in which the Supreme Court continued to exercise the jurisdiction now disclaimed.
He listed Kalejaiye v LPDC, Kareem v LPDC, Gbenoba v LPDC, Muyideen v NBA, Waziri v LPDC and Iyomon v LPDC as cases in which the court entertained appeals directly from the committee.
“This history is important because it demonstrates that Okike was not simply a forgotten precedent. It formed part of a continuing line of judicial practice concerning appeals from the LPDC.”
He was careful to acknowledge that the court possesses the power it exercised, while arguing that the threshold for its exercise was not met.
“The doctrine of stare decisis does not make Supreme Court decisions incapable of being overruled. The Supreme Court unquestionably possesses the power to depart from its previous decisions in appropriate circumstances. But where the earlier decision was a unanimous decision of seven Justices on a constitutional question, the reasons for overruling it must be correspondingly compelling, particularly where subsequent decisions have proceeded upon or recognised the same jurisdictional foundation.”
On that footing, he said the dissenting opinions merit close attention.
“The minority judgments in Mene-Ejegi therefore deserve considerable attention. Justices Ogbuinya and Abiru rejected the majority’s approach and maintained, in substance, that Okike remained a valid authority. Their position demonstrates that the constitutional question is far from being as straightforward as the majority’s conclusion might suggest.”
He framed the underlying issue as one of legal stability rather than of outcome.
“The deeper issue is this: can a statutory provision be declared unconstitutional merely because a later panel adopts a different interpretation of the Constitution, when an earlier full panel of the same Court had unanimously construed the constitutional provisions and the statute as permitting the jurisdiction? That question goes to the heart of judicial certainty.”
The senior advocate emphasised that the jurisdiction in question is not a procedural nicety but the final safeguard available to a lawyer facing the loss of his profession.
“The LPDC is a specialised disciplinary body dealing with the professional status and livelihood of legal practitioners. Its decisions may result in suspension from practice or striking a lawyer’s name from the Roll.”
“The availability of appellate supervision by the Supreme Court is therefore not an insignificant procedural matter. It concerns the ultimate judicial safeguard available to a practitioner whose professional existence may be profoundly affected by disciplinary proceedings.”
He accepted without qualification the supremacy of the Constitution over an inconsistent statute, while disputing that the inconsistency was established.
“It is understandable that the Constitution must prevail over an inconsistent statute. Section 1(3) of the Constitution admits of no doubt on that principle. But the more difficult question is whether Section 12(7) actually conflicts with Sections 233 and 240 in the manner now declared by the majority. That is the precise constitutional question on which Okike and Mene-Ejegi have arrived at different conclusions.”
“In my respectful view, the better jurisprudential approach would have been to confront Okike with greater doctrinal restraint. A unanimous seven-member decision of the Supreme Court should not be displaced merely because a later panel considers that another interpretation is preferable. The Court should demonstrate, with compelling constitutional reasoning, not merely that Okike was capable of being differently interpreted, but that it was plainly and demonstrably wrong in constitutional law.”
He raised what he described as a serious transitional and institutional consequence of the decision, and said the profession is entitled to an answer.
“The consequence of Mene-Ejegi also creates a serious transitional and institutional question: what happens to the body of Supreme Court decisions in which the Court entertained direct appeals from the LPDC after Okike? The legal profession deserves a clear answer.”
Concluding, the senior advocate said the controversy transcends the parties before the court.
“Ultimately, the controversy is not about personalities or even about the fate of one practitioner. It is about the authority of precedent and the constitutional stability of the legal profession’s disciplinary regime.”
“A split five-member decision departing from a unanimous seven-member constitutional decision of the same Court is undoubtedly permissible within the power of the Supreme Court. But permissibility is not the same thing as jurisprudential inevitability.”
He said the profession is entitled to continue the conversation as to “whether Mene-Ejegi has satisfactorily demonstrated that Okike No. 1 was constitutionally erroneous, or whether the apparent conflict between the two decisions calls for further authoritative reconsideration.”
“When the Supreme Court speaks unanimously through a full panel, subsequent departure demands not merely a different voice, but a demonstrably stronger constitutional reason. That, respectfully, is the burden which Mene-Ejegi must bear.”
He ended with his own assessment of whether that burden was discharged: “In my respectful view, the majority decision in Ben Mene-Ejegi did not demonstrate stronger constitutional reasons or any jurisprudence that was new or fundamentally new from the full decision of the Supreme Court in Okike No. 1, nor give any good and satisfactory reasons why it held that Okike No. 1 was wrongly decided.”
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