Legal practitioner Abubakar D. Sani, Esq has raised concerns about a 2017 decision by the Legal Practitioners Disciplinary Committee (LPDC) which he believes wrongly shifts the burden of proof in disciplinary cases against lawyers.
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In the case of NBA vs. OFOMATA (2017) 5 NWLR pt. 1557 pg. 128 @145H, the LPDC held that once a prima facie case is forwarded to them by the NBA’s Investigating Committee, “the onus of proof is on respondent to deflect the finding of a prima facie case hitherto reached by the said Investigating Panel by providing evidence to the contrary”.
However, Sani argues this is inconsistent with Section 135 of the Evidence Act, which governs burden of proof in criminal cases. He notes that under regular court proceedings, the burden only shifts to the defendant after the court itself has made a prima facie finding, not a separate investigating body as is the case with the LPDC.
“I believe this is wrong, where – as is usually the case – the Committee is considering a criminal complaint against a legal practitioner,” Sani stated. “I believe only the Committee itself ought to make that finding after which it will then invite the Respondent to proffer his/her defence, if any.”
He asserts that the LPDC’s 2017 decision has serious implications for fair hearing rights guaranteed under Section 36(1) of the Constitution. According to Sani, these rights explicitly apply to the LPDC since it functions as a tribunal.
The legal practitioner is now calling for the controversial ruling to be reviewed in order to protect the constitutional rights of lawyers facing disciplinary action. The burden of proof in such cases, he maintains, should remain fully with the LPDC as the adjudicating body until it makes its own prima facie determination.
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