By Abubakar-D.-Sani
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Introduction
It appears that the full import of the decision of the Federal High Court on 28 September 2026, which reprieved Senior Advocate Joe-Kyari Gadzama from the three-year suspension slammed on him by the Legal Practitioners Disciplinary Committee (LPDC), is yet to be grasped by the rank and file of the Bar (and, perhaps, the Bench). That verdict and the speed with which it arrived is virtually unprecedented in its class (if not beyond): just a day short of two calendar months, from start to finish. The merits of the Direction itself (as decisions of the LPDC are euphemistically called) have been glossed over in most commentaries, with analysts focusing almost entirely on anything but the constitutionality of Justice Egwuatu’s decision. I intend to buck that trend. My interest and concern are for want of better words whether the age-old aphorism of the end justifying the means has played out yet again in this case. Am I correct? We shall see.
Background
Aggrieved by the said Direction of the LPDC, Chief Gadzama, SAN, sought to appeal to the Appeal Committee of the Body of Benchers, which was unfortunately not possible because that body had ceased to exist through legislative amendment (military fiat, vide Decree 21 of 1994). His only other option (the Supreme Court) was also foreclosed by virtue of the Court’s decision in BEN MENE-EJEGI v NBA & LPDC (SC/481/2018). Was that the end of the road for him? Certainly not, as the Federal High Court Civil Procedure Rules 2019 came in handy with their provisions for judicial review. This was how his complaint landed on Justice Egwuatu’s lap (sorry docket), who rightly applied the maxim, ubi jus ibi remedium (where there is a right, there is a remedy), to grant him reprieve, as aforesaid.
Was Justice Egwuatu Correct?
Absolutely. There is no doubt that it is manifestly unjust to deny an aggrieved person (litigant or not) an appeal mechanism or a means of challenging a decision, action or omission which affects his civil rights and/or obligations. It is only fair and in the interest of justice. Beyond that, it is also tacitly recognised in Section 36(1) of the 1999 Constitution (subsection (2) of which Justice Egwuatu invoked to justify his decision incorrectly, in my view. More on this shortly). Article 7(1) of the African Charter on Human and Peoples’ Rights also confers that right. Both provisions are reproduced (the latter only partly), as follows, respectively:
Section 36(1) of the Constitution:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
Article 7(1):
“Every individual shall have the right to have his case heard. This comprises-
a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force.”
As previously stated, Justice Egwuatu justified his decision (at least partly) on the basis of Section 36(2)(b) of the 1999 Constitution — completely leaving out paragraph (a) thereof. Needless to say, it is settled that the Constitution should be interpreted as a whole — in the sense that related provisions should be construed together: SKYE BANK v IWU (2017) 16 NWLR Pt. 1590, pg. 24 at 87, SC. Accordingly, we shall set out the whole of Section 36(2) of the Constitution as follows:
“Without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such-
a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
b) contains no provision making the determination of the administering authority final and conclusive.”
In applying only the provisions of paragraph (b) of Section 36(2) above, as aforesaid, Justice Egwuatu opined as follows:
“The above provision is a constitutional protection against the Direction of an Administering Authority being final and conclusive. In other words, a Direction or decision of an Administering Authority cannot be final, but admits of an appeal to a higher body. In the circumstances where the Direction of the 2nd Respondent becomes final, it is against or contrary to the provisions of Section 36(2)(b) of the Constitution.”
I believe that the very last sentence of My Lord’s opinion quoted above is problematic, for the reasons that I will presently explain. To start with, it was completely taken out of context, in that it was construed without any reference to its preceding paragraph and the conjunction “and” which connects them. According to the Merriam-Webster Online Dictionary, “and” is a function word which, amongst other things, indicates connection or addition, especially of items within the same class or type. I believe it is in this sense that the word “and” between paragraphs (a) and (b) of Section 36(2) of the Constitution is used. In other words, both paragraphs should be construed alternatively, and not otherwise.
It was certainly in this sense that the Supreme Court construed identical provisions in Section 33(2)(a) & (b) of the 1979 Constitution in BAKARE v LAGOS STATE CIVIL SERVICE COMMISSION (1992) 3 NSCC 218 at 247–248. In the words of Karibi-Whyte, JSC, in that case:
“Subsection (2) deals with the question of the validity of such enabling laws. Under this subsection, which is without prejudice to the provisions of Subsection (1) of the Section, any law that affects or may affect the civil rights and obligations of any person is valid if (a) it provides an opportunity for the person affected to make representation to the person taking the decision before the decision is taken . . . ; or (b) the decision made without hearing is not final and conclusive. The conditions are independent of each other and are in the alternative . . . Hence, a law which makes provision as in subsection (2) shall not be invalidated because of subsection (1). Such law is therefore not invalid.”
It is trite law that the interpretation placed by a court on a statutory or constitutional provision is applicable to identical provisions in another statute or Constitution: NWOBODO v ONOH (1984) 1 SC 34–35 and OKAFOR v ATTORNEY-GENERAL OF ANAMBRA STATE (2000) 11 NWLR Pt. 679, pg. 478 at 504, CA.
What is glaring from the above decision of the Supreme Court in BAKARE’S CASE is the centrality of “laws” therein. In other words, the focus is on the provisions of a law or laws which might infringe a person’s right to fair hearing. Thus, the Apex Court categorically held that such a law will only be invalidated if, in addition to denying a person the right to be heard prior to making a decision which affects him or her, it also provides that such a decision is final and conclusive. These two conditions must co-exist before such a law can be struck down as invalid. If only one of them exists, the law is saved.
Crucially, no such law was involved, invoked or considered in Chief Gadzama’s case. In fact, the only related provision which came up for consideration was Section 12(7) of the old Legal Practitioners Act which apart from the fact that it is no longer extant (it was deleted from the current Legal Practitioners Act) was struck down by the Supreme Court in BEN MENE-EJEGI’S Case, as aforesaid.
The irresistible conclusion, therefore, is that not only was Justice Egwuatu’s interpretation of Section 36(2)(b) of the Constitution not borne out by the facts before him, but, more importantly, it was clearly rendered per incuriam of the decision of the Apex Court in BAKARE’S CASE, as aforesaid. A decision is said to be made per incuriam when it overlooks or fails to take into account a binding relevant decision or statute: ADISA v OYINWOLA (2000) 10 NWLR Pt. 674, pg. 116 at 182B, SC.
BAKARE’S CASE, which construed provisions identical to Section 36(2)(a) & (b) of the 1999 Constitution (that is, Section 33(2)(a) & (b) of the 1979 Constitution), was clear that — contrary to the decision of Hon. Justice Egwuatu both paragraphs of the subsection should be construed independently of each other and in the alternative.
This means that, even if a law does not confer a right of hearing on a person, so long as that law does not also provide that any decision made without a hearing is final and conclusive, the person cannot complain. That was clearly not the case of the Learned Silk. Indeed, as the learned trial Judge found, Chief Gadzama had ample opportunity to present his case before the LPDC; he did so and participated fully in its proceedings, culminating in its unfortunate decision or Direction. Happily, this has now been overturned (or, in any case, suspended).
Conclusion
The decision lends credence to the legal position that once the outcome of judicial proceedings is correct, it will not be set aside on appeal, even if it proceeds from flawed reasoning: AYENI v SOWEMIMO (1982) NSCC 104; ONAJOBI v OLANIPEKUN (1985) 4 SC Pt. 2, pg. 156 at 163; and ODUKWE v OGUNBIYI (1998) 8 NWLR Pt. 561, pg. 339 at 351.
There is no doubt that the decision of Justice Egwuatu in Chief Gadzama’s case is the right one. It is correct. It is only the reliance which the Court placed on Section 36(2) of the Constitution that is problematic, in my view. That rationalisation was — with the greatest respect — unnecessary and unwarranted. The maxim ubi jus ibi remedium, which His Lordship applied, sufficed for his ultimate decision, which was to grant reprieve to the Learned Silk.
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