A prominent Nigerian Lawyer and Senior Advocate of Nigeria, J.S Okutepa, SAN has faulted the reasoning of some people who thinks a judicial officer who commits acts of Professional misconduct cannot be preceded before the Legal Professional Disciplinary Committee of the Body of Benchers.
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In the words of the learned silk, he said he really doesn’t think that it is correct to suggest as some legal practitioners are doing that a judicial officer who commits acts of professional misconduct cannot be proceeded before the Legal Practitioners Disciplinary Committee of the Body of Benchers. Okutepa SAN reasoned that Judicial officers who commit professional misconduct requiring that he or she be suspended from legal practice or that he or he name be struck off the Roll, can only be proceeded against before LPDC submitting that it is the only body with such jurisdiction.
“I have had the privilege of arguing this before the LPDC when I was the Chief Prosecutor of NBA at LPDC and LPDC agreed with me. The jurisdiction of the LPDC to entertain and deal with complaints/petitions against erring legal practitioners is not affected by time or change of status of the legal practitioner involved.”
According to Okutepa SAN, In NBA vs. Harrison; Direction of the LPDC in BB/LPDC/104 delivered on 27/2/2013, Page 85 at 87-88: the petition before the LPDC was in respect of the conduct of the respondent while acting in his capacity as a legal practitioner.
He was later appointed a judge of the High Court of Lagos State. A preliminary objection was taken before the LPDC on the ground that, the respondent being a judicial officer was no longer a person over which the LPDC can exercise its disciplinary jurisdiction.
It was held that: It is now clear that the definition in Atake (supra) should be construed in the light of the attributes of a legal practitioner. In our view he or she is,’… that person that has been called to the Bar to practice as a Barrister and Solicitor of the Supreme Court of Nigeria’ and this must perforce include the ‘Respondent’ and any ‘judicial officer’ of the Superior court of record in Nigeria excluding perhaps a few Sharia Court of Appeal Judges. We hold that it is not the involvement of a legal practitioner in active legal practice and this includes the taking of instructions from clients and advising them, drafting and filing processes in court, representing clients in court, acting as solicitors to vendors and or purchasers, defending accused persons etc. that qualifies a person to be referred to as a ‘legal practitioner’.
Okutepa arguing from the Constitution believes that What qualifies a person to be referred to as a ‘legal practitioner’ or act as one lies in the fact that his or her name is on the Roll of legal practitioners’ as stipulated by section 2(1) of the Legal Practitioners Act. See also section 24 of the Legal Practitioners Act which provides thus; ‘Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purpose of any particular office or proceedings. We are fortified in this view by the provisions of Sections 231-(3), 239-(3), 250-(3), 261-(3)-(a), 270-(3) of the 1999 Constitution as modified which stipulate the qualification to be appointed as Justice of the Supreme Court, Court of Appeal, Judge of the Federal High Court, Kadi of the Sharia Court of Appeal, Judge of the Customary Court of Appeal and High Court of a State as being a person qualified to practice as a legal practitioner for a specified number of years. By way of direct example we reproduce Section 239-(3) of the 1999 constitution which provides thus: ‘A person shall not be qualified to hold the office of a justice of the Court of Appeal unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than twelve years.’ The Respondent therefore for all intents and purpose whether as a judge of the High Court a legal practitioner.
The matter does not end there, the real issue for determination is as posed to both learned senior counsel in the course of the argument of this preliminary objection and it is; Whether an infraction allegedly committed by a legal Practitioner terminates, lapses or comes to an end, once such legal practitioner alters his or her status and is no longer in active legal practice? The answer in our view is quite simple and it lies in the provisions of section 10 of the Legal Practitioners’ Disciplinary Committee (in this Act to be 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 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.
‘We are firmly of the view that if the wordings of Section 10 of the Legal Practitioners Act are given their ordinary and literal meanings as we are bound to do then we must come to the undisputable conclusion that the present allegation is against a person whose name is on the Roll and who is alleged to have misbehaved in her capacity as a legal practitioner. This Committee has no jurisdiction to consider any allegations of misbehavior against any judicial officer and the documents before us are not in respect of the Respondent’s conduct as a Judge. We are only interested in the conduct or alleged misbehavior of the Respondent as a legal practitioner.
In his submission, quoting from extant laws Okutepa noted that nothing should bar erring judicial officials from appearing before LPDC.
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