By Abubakar D. Sani
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Introduction
It is no longer news that the ill-advised and ill-intention complaint lodge against the Deputy Speaker of the House of Representatives, the Right Honourable Benjamin Okezie Kalu by a legal practitioner, John Aikpokpo-Martins at the Legal Practitioners Disciplinary Committee for sundry infractions of the Legal Practitioners Act and other statutes was dismissed as legally unmeritorious and untenable.. The Application alleged that the Deputy Speaker engaged in conduct unbecoming of a legal practitioner in connection with his admission to the Nigerian Bar (the Bar) in 2011. Specifically, the application contended that:
The Deputy Speaker made a false declaration on 23rd April 2010 in his Nigerian Law School registration form stating that he was not engaged and would not engage in employment or NYSC service during his Law School programme;
by virtue of section 2(3) of the National Youth Service Corps Act, 1993 (NYSC Act), a corps member must serve continuously for one year and not engage in other endeavours during that period; the alleged simultaneous participation in the NYSC programme and Law School necessarily implies that the Deputy Speaker did not meet the 70% attendance requirement prescribed by the Council of Legal Education (CLE) and, therefore, was not qualified to be called to the Bar; the Deputy Speaker’s purported participation in NYSC programme during his Law School year constituted a breach of sections 13(1)(b), 13(3), and 13(4) of the NYSC Act,and that such alleged breaches call into question his fitness and character to have been admitted as a legal practitioner; and in the alternative, that the Deputy Speaker did not attend the Law School or did not meet the requisite attendance and qualification requirements and falsely declared that he was not engaged in NYSC during his Law School admission process.
The Applicant had contended that had the Nigerian Law School been aware of the alleged concurrent participation in the NYSC programme and attendance of the Law School,the Deputy Speaker would not have been admitted or certified for Call to the Bar. Therefore, the Deputy Speaker was,allegedly,fraudulently enrolled as a legal practitioner in Nigeria.
We shall consider the allegations seriatim, at end of which it wil become transparently clear that it was a sheer abuse of the regulatory process of the LPDC
Allegation of infamous conduct in a professional respect
The charge of infamous conduct alleged was simply unsustainable, because all the acts complained of occurred before Mr. Kalu was called to the Nigerian Bar.The statutory framework makes clear that the conduct must be that of a member of the legal profession and must arise in a professional respect. The alleged simultaneous NYSC service and Law School attendance, as well as the declaration made in April 2010,all predate his Call to the Bar in September 2011.
At the relevant time, the Deputy Speaker was a student not a legal practitioner.The conduct alleged, which occurred prior to enrolment, cannot properly be characterised as professional misconduct within the meaning of the governing statute.On this basis alone, the allegation of infamous conduct before the LPDC was fundamentally defective.
On the allegation of obtaining enrolment by fraud
There is no statutory provision expressly prohibiting simultaneous NYSC service and Law School attendance. Enrolment as a legal practitioner depends on being duly called to the Bar and presenting a valid Call to Bar Certificate. The Application did not allege that the Deputy Speaker forged or fabricated his Call to Bar Certificate.On the contrary, the Applicant expressly acknowledged that he was called to the Bar
and even exhibited the Certificate. There was therefore no direct challenge to the validity of the Call itself. In any event, the LPDC is legally incompetent to examine or determine any alleged impropriety associated with admission into or conduct of a student at the Law School.
The Call to the Bar and subsequent enrolment are official acts presumed to have been properly carried out by the Body of Benchers, pursuant to the LPA, unless clearly proven otherwise-the burden of demonstrating that a statutory requirement was not met which lay on the Applicant, but which he did not discharge.Furthermore, the forum for this complaint is not the LPDC, given that the kernel of the Application relates to acts of the Deputy Speaker before he became a legal practitioner.
It is trite law that allegation of fraud, being criminal in nature, must be proved beyond reasonable doubt, in respect of which only a competent court of law can adjudicate upon
The Applicant primarily accused the Deputy Speaker of two professional offences under the LPA:
- infamous conduct in a professional respect;and
- obtaining enrolment by fraud.
INFAMOUS CONDUCT IN A PROFESSIONAL RESPECT
The LPA allows for sanctions to be imposed for professional misconduct where”person who is a member of the legal profession is judged by the [LPDC] to be guilty of infamous conduct in any professional respect”. The wording of this provision immediately indicates that, for the LPDC to be to hear and determine the Application, it must relate to the capacity of the Deputy Speaker as a legal practitioner. Furthermore, for the sanctions to be imposed in relation to this misconduct, the subject of the charge must be in respect ofmember of the legal
profession,” and the conduct must be “infamous conduct in any professional respect”-that is, it must relate to the person’s conduct as a legal practitioner. The LPDC has taken a similar view, in its finding in Soyemi v. Lawal that:
“It is not enough the legal practitioner be guilty of infamous conduct only but must be conduct arising out ofor pertaining to his profession”.
The foundational difficulty for the Applicant was that every act he alleged against the Deputy Speaker-the simultaneous undertaking of the NYSC programme and LAW SCHOOL studies and the alleged misrepresentation made at the time of his LAW SCHOOL registration in April 2010-occurred between March 2010 and September 2011, a period during which the Deputy Speaker was not a legal practitioner. The Deputy Speaker was called to the Bar on 6 September 2011 and enrolled on 5 October 2011. The entirety of the conduct relied upon by the Applicant predates those events.
It follows that when the alleged conducts occurred, the Deputy Speaker was not member of the legal profession” within the meaning of section 12(1)(a) read together with sections 2(1) & 24 of the LPA. At the relevant time, the Deputy Speaker was at best a student at the Law School, not a legal practitioner. It was hardly surprising therefore that the charge of infamous conduct could not be sustained on the facts alleged.
OBTAINING ENROLMENT BY FRAUD
Section 4(1) of the LPA, which sets out the condlitions for entitlement to be called to the Bar, does not prohibit simultaneously serving in the NYSC while studying at the LAW SCHOOL6 The section prescribes citizenship, produaction of a qualifying certificate, good character, and payment of call fees. There is no provision in the LPA-nor any regulation made by the CLE under section 4(3)thereof-that disqualifies an aspirant from call to the Bar by reason of having served in the NYSC concurrently with his Law School studies.
Secondly, the LPDC is not statutorily empowered to enforce provisions of the NYSC Act, so it does not avail the Applicant to rely on its provisions in the Application. Nevertheless, it is pertinent to state that arising from the Deputy Speaker’s declaration in the Law School registration form (which we address below),the seeming confluence between the timing of the Deputy Speaker’s service year and his studies at the Law School is perhaps the most potent aspect of the Applicant’s complaint.
However, upon an in-depth analysis, it is clear that the Applicant’s reliance on section 2(3) of the NYSC Act was misplaced. That provision states thatperson liable to be called upon to serve in the service corps shall serve for a continuous period of one year as from the date specified in the call-up instrument served upon him.”7This provision prescribes the duration and continuity of NYSC service; it imposes on a corps member the obligation to make himself available for service for the stipulated period. It does not, by its terms, automatically foreclose a corps member from engaging in activities such aspursuing a professional certification during the service year.
In the Deputy Speaker’s case, it was instructive that no provision of the NYSC Act or the Bye-Laws expressly prohibited educational or professional development during the service year.
Finally,the Nigerian Law School Student Handbook for the 2010/11 academic session contains no express prohibition on a student simultaneously serving in the NYSC during the 2010/11 academic session. An unsworn declaration made on a LAW SCHOOL registration form, whether honoured or not, is not a condition for call prescribed by statute or any subsidiary legislation.
Against the backdrop of the foregoing, the only plausible basis for the application
was proper legal meaning of the phrase “fraudulently enrolled” as used in section 7(1) of the LPA, which is analysed as follows.
Meaning of “Fraudulently Enrolled”
Under the LPA, a person may be sanctioned where “the Legal Practitioner’s Disciplinary Committee is satisfied that the name of the person was fraudulently enrolled”13 Section 7(1) of the LPA sets out the conditions upon which a person becomes entitled to enrolment, thus:
“aperson shall be entitled to have his name enrolled if, and only if: (a) he has been called to the Bar by the Benchers; and (b) he produces a certificate of his call to the Bar to the Registrar.”
No more
It is important to clarify that pursuant to Section 23(1) of the LPA, the reference to enrolment in the LPA is a reference to the insertion of a name in the roll of court kept by the Chief Registrar of the Supreme Court. Thus, the reference to “fraudulently enrolled” in section 12(1)(c) of the LPA can only mean a knowing misrepresentation (Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt. 988) 382 at 429,paras. G-H.) to the Chief Registrar of the Supreme Court that the Deputy Speaker has been called to the Bar; such misrepresentation being supported by the production to the Chief Registrar of a false Certificate of Call to the Bar.
However, the Application related to alleged acts of the Deputy Speaker leading up to his admission as a student of the Law School, not as to his conduct at the point of being called to the Bar or at the point of being enrolled at the Supreme Court; no fraud was alleged by the Applicant in this regard. On the contrary, the Applicant expressly conceded that the Deputy Speaker was called to the Nigerian Bar on 6September 2011 and was issued a Call to Bar Certificate by the Body of Benchers on that date. Accordingly, in the absence of evidence of fabrication of a Certificate of Call to the Bar, so as to falsely obtain enrolment, an allegation under section
12(1)(c) of the LPA was not made out.
Presumption of Regularity
Furthermore,section 168(1) of the Evidence Act 2011 (as amended) provides that “when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”. The gist of this presumption is that all acts are presumed to have been done rightly and regularly until the contrary is proved, with the onus of proving the contrary resting on the person who alleges such contrary position (Sani v.APC[2023] 17 NWLR (Pt. 1912) 109, at 150 (F) (SC).
The issuance of a Certificate of Call to the Bar by the Body of Benchers and enrolment by the Chief Registrar of the Supreme Court are unquestionably official acts, in that they are act of statutory persons exercising powers conferred by the LPA. The existence of that Certificate-which the Applicant conceded-constitutes evidence that the act of calling the Deputy Speaker to the Nigerian Bar and his subsequent enrolment were done in a manner substantially regular. The consequence is a statutory presumption that all formal prerequisites for the Deputy Speaker’s call to the Bar and enrolment-everything required of him by law before he could lawfully be called to the Bar and subsequently enrolled at the Supreme Court-were duly complied with.
In the absence of cogent and affirmative evidence rebutting this presumption, the Deputy Speaker’s call to the Bar and enrolment must be deemed regular and valid.The burden of rebutting the presumption rested squarely on the Applicant, who had to demonstrate, by cogent evidence, that there was something that rendered the Call to Bar Certificate invalid; a condition required by law that he woefully failed to meet.
The Specific Allegations did not Rebut the Presumption of Regularity
We now turn to the specific allegations of the Applicant and ask whether they were legally capable of rebutting the presumption of regularity.
First, the Applicant’s central contention was that the Deputy Speaker simultaneously undertook NYSC service and attended the Law School-allegedly in breach of Law School’s policy and section 2(3) of the NYSC Act-and therefore could not have met the 70% attendance threshold at the Law School,such that his qualifying certificate and consequent call to the Bar were invalid.
It is important to stress that arising from section 4(4) of the LPA, it is the Body of Benchers that has the statutory authority to issue the Certificate of Call to the Bar.Consequently, the LPDC cannot usurp the role of the Body of Benchers to invalidate that which the Body of Benchers is deemed to have regularly and validly done.
Secondly, the declaration relied upon by the Applicant is, on its face, an administrative statement contained in a registration form. It is not an affidavit, nor was it made before a commissioner for oaths, a notary, or any person authorised to take sworn statements. The Application did not point to any statutory provision rendering such declaration a sworn instrument, which attracts penal consequences under the law relating to perjury or false statements on oath.
It is also important to stress that for artificial entities such as the CLE, the rule is that all acts are prohibited except specifically permitted bylaw.18 Accordingly,since the unsworn declaration found in the registration form cannot take root in any primary or secondary legislation, it was ultra vires the CLE to make it a requirement, with the consequence that errors (or misrepresentations) in this regard are non sequitur.
The absence of statutory foundation for the declaration is exceedingly important because the proceedingsbefore the LPDC are by nature quasi-criminal and quasi-judicial.19 Accordingly,pursuant to Section 36(8) and 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Deputy Speaker can neither be tried nor punished by the LPDC unless the concurrent undertaking of Law School studies and the NYSC programme has been defined as a wrong by written law,and the punishment for such contravention also prescribed by law.20 Recently,in Ibrahim v. Nigerian Army,21 the Supreme Court re-emphasised that:
The import ofthe provision of Section 36(12) of the Constitution…from the ordinary dictionary meaning of the words used is that no act,omission, conduct or behaviour constitutes a crime unless it has been written down that the act, omission, conduct or behaviour should not be done and if done the doer is liable to a specific punishment. In other words,no person would be subjected to any pain or punishment for doing an act, making an omission, exhibiting a conduct or behaviour without a prior statement and the attendant punishment in writing for default.
Thus, in the absence of primary or secondary legislation which prohibited the Deputy Speaker from undertaking Law School studies during his service year, no quasi-criminal liability can arise from the declaration contained in the registration form. More importantly, the LPDC cannot purport to impose any penalty for any error in the registration form. Suffice it to say that, at best, errors or misrepresentations with respect to the registration form may constitute a regulatory or administrative matter for clarification by the issuing body, which in this case is the CLE.
Finally, the Applicant’s contention that the Deputy Speaker procured his admission to the Nigerian Bar by fraudulent misrepresentation, is criminal in character. Thus,
by virtue of section 135(1) of the Evidence Act (as amended), such allegations are required to be proved beyond reasonable doubt.22
In practical terms, this means the Applicant must do far more than raise suspicion or point to overlapping dates. He must establish, with credible and compelling evidence,each ingredient of fraudulent misrepresentation. In Ikpa v. State [2018]4NWLR (Pt. 1609) 175 at P.208,paras. E-F. The Supreme Court defined fraudulent misrepresentation as [2018]4 NWLR (Pt. 1609) 175 at P.208,paras. E-F.
“a false statement that is kno n to be false or is made recklessly without Mo ing or caring hether’it is true or false and that is intended to induce a party to detrimentally rely on it.”
Therefore, the Applicant was required to show that the Deputy Speaker intended that the CLE or Law School relied on the representation to issue a qualifying certificate to the Deputy Speaker. More importantly, the Applicant must also go beyond speculation and convincingly prove that the Law School or CLE relied on the unsworn declaration in issuing the qualifying certificate.
However, the Application failed to establish that the CLE or the Law School relied on the declaration as a basis for issuing the qualifying certificate. The Applicant did not produce any evidence demonstrating that:
- the declaration formed a decisive or material basis for admission;
- the CLE would have refused admissionhad it known of the alleged NYSC participation; or the qualifying certificate was issued in reliance on the said declaration.
In the absence of cogent evidence of reliance, the allegation collapsed into mere conjecture. The LPDC could not have embarked on a voyage of discovery to infer fraud from mere temporal overlap of events without strict proof that the impugned
declaration induced the issuance of the certificate. The Deputy Speaker was assessed, trained, examined, and certified by the competent statutory authorities.There is no evidence that those authorities were misled or that the certificate was procured by deception.
Conclusion
The failure of the application against the Deputy Speaker demonstrates the dangers in deploying the mechanism for regulating the conduct of legal practitioners for mischief and witch-hunt. Without consequences. Perhaps, it is the price of public service-or,as they say colloquially, it comes with the territory. To that extent, the Hon. Deputy Speaker deserves our sympathy. A lot, however, needs to be said for sanctioning such frivolous complaints as a deterrence to others.
Abubakar D. Sani, Legal Practitioner,08034533892, Abuja
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