Must NBA Give Lawyer Details Of Probe Before Referring Same To LPDC?

GABRIEL GBENOBA, ESQ v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE& ANOR

CITATION: (2021) LPELR-53064(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 5TH FEBRUARY, 2021

Suit No: SC.536/2015

Before Their Lordships: 

OLABODE RHODES-VIVOUR

Justice of the Supreme Court

MUSA DATTIJO MUHAMMAD

Justice of the Supreme Court

HELEN MORONKEJI OGUNWUMIJU

Justice of the Supreme Court

ABDU ABOKI

Justice of the Supreme Court

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EMMANUEL AKOMAYE AGIM

Justice of the Supreme Court

Between

GABRIEL GBENOBA, ESQ

– Appellant(s)

And

1. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
2. NIGERIAN BAR ASSOCIATION

– Respondent(s)

LEADING JUDGMENT DELIVERED BY HELEN MORONKEJI OGUNWUMIJU, J.S.C.

FACTS

The Petitioner on the 23rd of June 2008 sought the legal services of the Appellant in respect of the purchase of property at No. 38 Raymond Njoku Street, Ikoyi, Lagos. The Appellant advised against the purchase but the Petitioner went ahead to purchase the property. Thereafter, the Petitioner paid the Appellant to perfect the documents relating to the property after it was purchased through another legal practitioner.

On 2nd July 2008, the Appellant brought a quote of N7,500,000.00 for obtaining Governor’s consent, registration of the property and professional fees which the Petitioner agreed to pay. The money was paid by the Petitioner to the Appellant. In the course of processing the consent, there was a delay beyond the expected time for perfecting the documents. Apart from that, litigation ensued in respect of the property.

The Petitioner and Appellant fell out over the inability of the Appellant to obtain Governor’s consent and problems encountered in the course of the litigation. The Petitioner asked for return of the money paid to regularize the proper documentation of the property. The Appellant insisted he was still owed money and the Petitioner refused to pay. Not satisfied with the claim of the Appellant, the Petitioner wrote a petition to the Nigerian Bar Association (2nd Respondent) alleging professional misconduct. The NBA sent the petition for Appellant’s comments and he responded to the petition. The NBA concluded that a prima facie case had been made against the Appellant. The NBA drafted charges and referred the charges to the Legal Practitioners Disciplinary Committee. The Appellant was charged before the Legal Practitioners Disciplinary Committee (1st Respondent) on a three- count complaint by the Nigerian Bar Associationfor engaging in conduct unbecoming of a legal practitioner contrary to Rules 1, 14, 16, and 21 of the Rules of Professional Conduct for Legal Practitioners (RPC) and was found guilty. The Legal Practitioners Disciplinary Committee directed the Appellant to refund the disputed money to the Petitioner, and also ordered that the name of the Appellant be struck out from the Roll of Legal Practitioners. Dissatisfied, the Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION.

(1) Whether the Decision/Directions of the committee can be sustained when the petition of Mrs. Olatimbo Ayinde against the Appellant to the 2nd Respondent was without prior investigation by an investigative panel before reference to the 1st Respondent.

2) Having regard to the Constitution/Composition of the Committee, whether its Decisions/Directions dated 6th May, 2014 are not totally in breach of the Appellant’s right to fair hearing, and all together, null and void?

3) Whether the Decisions/Directions of the Committee are supported by credible and admissible evidence?

APPELLANT’S SUBMISSIONS

On issue 1, Counsel argued that where a statute provides for the manner in doing an act, such act must be done in accordance with the stipulation of the statute. Counsel cited FRN v. Senator Adolphus N. Wabara &Ors (2013) LPELR-20083 (SC) at Pg 17-18, paras. F-A. Counsel submitted that the 2nd Respondent did not set up any panel to investigate the complaint of professional misconduct against the Appellant before forwarding the case to the 1st Respondent for trial which was a clear violation of the procedure laid down. Counsel argued that it is when the 2nd Respondent had previously investigated the case against a legal practitioner that it will refer the findings by way of a report to the LPDC indicating that a prima facie case has been made out against the Legal Practitioner and charges are then drafted to support the case and presented to the LPDC.

On issue 2, Counsel argued that the composition of the committee fluctuated throughout the proceedings and rendering of the directions. Counsel argued that many members of the committee who did not hear any witness or participate at all stages of the proceedings surfaced to deliver the directions of the committee whereas the committee is one of first instance charged with evaluating and ascribing probative value to the evidence of witnesses after watching the demeanor of such witnesses before coming to a Decision. Counsel cited Obiajulu Nwalutu v. NBA & Anor (2019) LPELR -46916 SC; Gwarzo v. C.O.P.(2014) LPELR 23470 (SC) 22-2014 15 NWLR, Ihekwoba v. The State (2004) 15 NWLR (PT.896) 296 at 309- 2004. 

Counsel also submitted that Mr. J. B. Daudu SAN’s participation as head of both the 1st & 2nd Respondents led to denial of the Appellant’s right to fair hearing in the circumstances. Counsel citedLPDC V. Fawehinmi (1985) 2 NWLR Pt.7 Pg.300 atPg.383-384, Kalejaiye v. LPDC (2019) 8 NWLR Pt.1674 Pg.365 at Pg. 382.

 On issue 3, Learned Appellant’s Counsel argued that the two letters consisting of the Petition to the 2nd Respondent written by Ayinde Olatimbo on 26/9/2008 and Letter of Petition of one Victoria Folakemi Akinlabi also written same day with its Exhibits were tendered by PW1, an Assistant Secretary of the 1st Respondent. Neither of the Petitioner came to speak to the petitions, the basis of which the directions of the 1st Respondent were pronounced. PW1 admitted that he had no knowledge of the details nor was he a party to the transaction between the parties.Counsel argued that the relevant persons who made the statements and documents tendered by P.W.1. were alive and their failure to come before the Committee to give evidence rendered theevidence of PW1 inadmissible and documentary hearsay under Section 39 of the Evidence Act. Counsel cited Andrew v. INEC (2018) 9 NWLR (Pt. 1625)507 at Pg.557-558, paras. H-A.Counsel also submitted that no one was called to speak to those documents and they were thus deemed to have been dumped on the Committee contrary to all known Laws. Counsel cited Dickson v. Sylva (2017) 8 NWLR Pt. 1567 Pg. 167 at 234, Paras. F-G.

RESPONDENTS’ SUBMISSIONS

On issue 1, Counsel argued that the complaint is baseless as the Appellant was served with a copy of the petition by the 2nd Respondent and he responded to it. Counsel argued that the NBA Investigation Committee is an internal organ of the NBA. The NBA having considered the Petition against the Appellant and his response thereof, was satisfied that a prima facie case of professional misconduct was made out against the Appellant before referring the matter to the LPDC. Counsel argued that Charles Okike v. LPDC No.2 (2005) 7 SC Pt. 111 Pg. 75 has settled the issue that there is no specific mode of investigating any petition so long as it was investigated.

On issue 2, Counsel argued that the variation in the members of the Committee at various sittings did not affect the legality of the proceedings of the 1st Respondent. Counsel submitted that the quorum of the 1st Respondent at any sitting shall be five (5) pursuant to S. 11(2) of item 1 of the Supplementary Provision and S. 11(2) of the Legal Practitioners Act. Counsel submitted that a mere variation in the composition of the panel which does not affect the judgment or decision of the panel. Counsel cited Ndukwe v. LPDC & Anor (2007) LPELR- 1978 (SC).

Counsel further submitted that S.28 of the Interpretation Act makes it only mandatory for the Chairman and one other member to be present throughout the proceedings. Learned Counsel argued that from the records, the chairman signed and delivered the Directions with four other consistent members of the committee, hence there was no miscarriage of justice.

On issue 3, Learned 1st Respondent’s Counsel argued that the effect of S. 175 (1) of the Evidence Act is that every person is qualified to give evidence in a proceeding except where such a witness falls under the exception stipulated by Section 175(2) of the Evidence Act. He cited Elabanjo v. Alhaja A. O Tijani (1986) LPELR 1107 (SC). Counsel submitted further that from the printed record, PW 1 was obviously not within the exception and that what PW1 did was to give evidence, being the custodian of documents to be relied upon by parties in prosecuting and defending the complaint.Counsel argued that the nominal complainants need not give evidence to prove the complaints. Counsel argued that it is too late in the day to contend against the admission of the bulk document admitted by the committee through the P.W.1 and that Appellant’s failure to object during the trial amounted to a waiver of his opposition to the document. Counsel cited Nasir v. CSC Kano &Ors (2010) LPELR -1943(SC).

RESOLUTION OF THE ISSUES

On issue 1, the Court considered Rules 3 and 4 of the Legal Practitioners (Disciplinary Committee) Rules on the modalities for the submission of a complaint. The Court, agreeing with the Respondents, held that “there is no provision in the Rules that the NBA must inform the Appellant how it went about its investigation, so long as the Appellant was given an opportunity to defend the accusations made against him.” See Charles Okike v. Legal Practitioners Disciplinary Committee No.2 (2005) 7 SC Pt. 111, Pg. 75.

On the first leg of issue 2, the Court stated that the position of the law is that where a Court is not properly constituted to ensure its full awareness and impartiality in that the Court was differently constituted during the hearing of a case or on various occasions when they met, or where one member did not hear the whole evidence, or a member had an interest in the matter, the effect on the proceedings was to render same null and void. See Egba N.A v. Adeyanju (1936) 13 NLR 77; Tawlah III v. Ewudzi 3 WACA 52; Otwiwa v. Kwaseko 3 WACA 230. Applying the above to the case,the Court held that the LPDC, not being an appellate body but a quasi-judicial body and an adjudicator at first instance, all the members who delivered the Directions must have participated in the full trial after utilizing the opportunity of seeing the demeanor of witnesses, etc. See Nwalutuv.NBA& Anor (2019) 8 NWLR Pt.1673 Pg.174 at Pg.195.

 On the 2nd leg of issue 2, the Court agreed with the reasoning of the Committee that the participation of Mr. J. B. Daudu SAN’s as head of both the 1st & 2nd Respondents did not amount to breach of right to fair hearing as Mr. J. B. Daudu SAN participated in the 1st and 2nd Respondents in different capacities and as such there was no likelihood of bias.

On issue 3, the Court held that the documents tendered by the staff of the 1st Respondent had no probative value because, without a witness adopting the said documents and speaking to the petition to prove the truth of their contents, they amounted to documentary hearsay and inadmissible as credible evidence. Going further, the Court held that the failure of the Petitioner to be represented as a party either personally or by Counsel was fatal to the case. In the absence of the Petitioner, there was no opportunity for the Appellant to cross examine the Petitioner and the Committee could not witness the demeanor of the Petitioner to judge her credibility.

HELD

The Court allowed the appeal and set aside the decision of the Legal Practitioners Disciplinary Committee. 

 Appearances:

Adamson Adeboro with him, Teslim Dauda

–For Appellant

Adedayo Adedeji with him, Abdukareem Audu and M.C Ezeobidi

-For 1st Respondent

Anozie Obi with him, EnwezorNonye

– For 2nd Respondent

• Compiled by LawPavilion