➥ CASE SUMMARY OF:
GBENOBA v. LPDC & ANOR (2021) – SC
by PipAr Chima
Supreme Court – SC.536/2015
➥ JUDGEMENT DELIVERED ON:
Friday, February 05, 2021
➥ AREA(S) OF LAW
Infamous misconduct of a legal practitioner;
➥ NOTABLE DICTA
⦿ FAIR HEARING APPLIES TO QUASI JUDICIAL BODIES
It is the very antithesis of justice to agree to the suggestion that a quasi-judicial body like the LPDC should not obey the rules of fair hearing. – Ogunwumiju JSC. Gbenoba v. LPDC (2021)
⦿ DIRECTIONS MUST BE GIVEN BY THOSE WHO PARTICIPATED IN THE TRIAL
The LPDC is not an appellate body but an adjudicator of 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. – Ogunwumiju JSC. Gbenoba v. LPDC (2021)
⦿ IMPROPERLY CONSTITUTED PANEL AFFECTS FAIR HEARING
The composition of the Disciplinary Committee is intrinsic to the fulfilment of the requirements of Section 36 of the Constitution that guarantees fair hearing to the accused. Where the panel is constituted in such a way that it affects a person’s right to fair hearing, whatever decision is reached by such a panel will result in a nullity. – Abdu Aboki JSC. Gbenoba v. LPDC (2021)
Gabriel Gbenoba, Esq
1. Legal Practitioners Disciplinary Committee;
2. Nigerian Bar Association.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.S.C.
⦿ FOR THE APPELLANT
– Mr Adamson Adeboro Esq.
⦿ FOR THE RESPONDENT
– Mr. Adedayo Adedeji Esq. (for 1st Respondent);
– Mr. Anozie Obinnaya Obi Esq. (for the 2nd Respondent).
➥ CASE HISTORY
The facts leading to this appeal is that the Appellant was the subject matter of a petition written by one Mrs Ayinde Olatinbo, to the Nigerian Bar Association, stating that she engaged the legal services of the Appellant sometime in June 2008, to secure the consent of the Governor of Lagos State for the stamping and registration of the Deed of Assignment in respect of the property situate at No. 38 Raymond Njoku Street, Ikoyi, Lagos, which their Company had purchased. The Petitioner paid the Appellant the sum of N7,500,000.00 (Seven Million, Five Hundred Thousand Naira) for the purposes of carrying out the assignment and the Appellant, after acknowledging the receipt of the money, unilaterally withdrew from executing the Petitioner’s instruction, alleging that there were litigations in respect of the property.
After the NBA carried out a preliminary investigation in respect of the allegations contained in the Petition, the Panel of the NBA constituted to investigate the allegations found that a prima facie case had been established against the Appellant and consequently preferred a three count complaint against the Appellant before the Legal Practitioners’ Disciplinary Committee.
In response to the Compliant, the Appellant’s position is that he was never investigated by the NBA Lagos or Ikeja Branches and that he never converted the N7,500,000.000 to his own use. He stated further that he had not made a refund of the money to the Petitioner. At the close of the trial, the Committee found the Appellant liable for professional misconduct and directed that his name be struck out from the Roll of Legal Practitioners in Nigeria.
This is an appeal against the Directions of the 1st Respondent delivered on 6th day of May, 2014 Coram: J.B. Daudu SAN (Chairman); Hon. Justice Z.A. Bulkachuwa Ag. PCA (as she was then was); Hon. Justice P.A. Galinje JCA; (as he then was) Hon Justice A.S. Dahiru, C. J. Sokoto; Hon. Justice Kulu Aliju, C.J Zamfara; Yusuf Ali SAN; Emmanuel C. Ukala SAN; R. A. Lawal Rabana SAN; Anthony Ani SAN, Attorney- General Enugu State and Tijjani Inuwa -Dutse Esq., wherein the Appellant was found guilty of infamous conduct as a legal practitioner contrary to Rules 1, 14, 16 & 21(1)(a) of the Legal Practitioners Act, as amended.
The 1st Respondent also directed the Appellant to refund the disputed amount of money, publication of the directions in the newspapers was also ordered. The 1st Respondent also ordered that the name of the Appellant be struck out from the Roll of Legal Practitioners.
Being dissatisfied with the directions of the 1st Respondent, the Appellant has appealed to this Court via an Amended Notice filed on the 6th of August 2020 wherein he prays for orders allowing this appeal, setting aside the directions of the Committee, acquitting him and restoring his name in the Roll of Legal Practitioners of Nigeria.
➥ ISSUE(S) & RESOLUTION
I. 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.
RULING: IN RESPONDENT’S FAVOUR.
I.A. In that case, this Court also held that the Appellant having not complained about the process adopted by the NBA in its investigation during his trial at the LPDC, it was too late on appeal for him to do so. I have no reason to depart from that stand of this Court on that point. Even though the Appellant’s complaint is about a necessary preliminary step, in so far as the rules of natural justice of communicating the complaint to him and allowing him reasonable time to react to the complaint had not been breached, the fact that there was no song and dance as it were about the investigation carried out by the NBA cannot form the basis of a serious complaint that would warrant setting aside the ultimate Directions of the 1st Respondent. I however concede that best practices in this regard would be to have a formal report of the investigation on which the charges recommended to the LPDC are based served on the Legal Practitioner.
II. 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?
RULING: SUCCEEDS, IN PART.
II.A. The historical stand of the superior Courts had always been 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 them null and void.
II.B. There is perhaps nothing more serious apart from deprivation of liberty than the deprivation of means of livelihood, which affects not only the party before the tribunal or Court, but affects a whole generation of persons attached to that party. At every point, every effort should be made to obey the golden rules of fair hearing in the course of any judicial or quasi-judicial proceedings. The LPDC as I said earlier is a quasi-judicial body and not merely an administrative body. It must conduct its proceedings in accordance with the rules of natural justice and fair hearing and not in a cavalier and haphazard manner but with due diligence attached to an issue that affects the life and livelihood of a legal practitioner. The directions agreed to by several members who were not present during and/or throughout the proceedings which was written by the chairman of the LPDC did not meet with the basic requirement of fair hearing as entrenched in our constitutional jurisprudence. The LPDC is not a star Chamber or Kangaroo Court doing wishy washy justice. There must be certainty in the composition and consistency of its panel. The moral force of its Directions rests on the 29 caliber of the people who took the final Decision to deprive a legal practitioner of his means of livelihood.
II.C. Indeed, the roles to be played by members of the NBA and the Body of Benchers (from which body members of the LPDC are taken) are quite different. In the circumstances of this case, there has not been an invidious usurpation of roles here to lead to the unavoidable conclusion that there would be likelihood of bias by the chairman in the proceedings to warrant his exclusion there from. This case is quite different from Kalejaiye and NBA. This leg of the issue is resolved in favor of the Respondents.
While the main leg of this issue is resolved in favor of the Appellant, the sub leg of the issue is resolved in favor of the Respondent.
III. Whether the Decisions/Directions of the Committee are supported by credible and admissible evidence?
RULING: IN APPELLANT’S FAVOUR.
III.A. The LPDC Rules 10(2) states clearly that the Evidence Act shall apply as in civil proceedings. The documents tendered by the staff of the 1st Respondent have no probative value to prove the truth of their contents. It can only prove that indeed a petition was written to the NBA. Without a witness adopting and speaking to the petition to prove the truth of its contents, it is documentary hearsay and inadmissible as credible evidence of its contents. The petition tendered by PW1 and admitted by the 1st Respondent had absolutely no probative value in the circumstances of this case. I cannot agree that the purport of Rule 4 of the LPDC Rules is that S. 11 (1) of the Legal Practitioners Act allows the bare petitions and answers without more used to decide that a prima facie case had been made against the Legal Practitioner will also be used to form or ground the basis of the determination of the case against the Legal Practitioner during this trial by the LPDC. That is the height of Star Chamber reasoning.
III.B. My Lords, I understand the need to enforce discipline at the Bar and everyone would be on board to ensure that we have a credible Bar that has the confidence of litigants. However, throwing away all basic rules of evidence to achieve this end cannot augur well for the Legal profession. It is tantamount to throwing the baby away with the bath water. In the absence of an opportunity for the Appellant to cross examine the petitioner, how did the LPDC arrive at the conclusion of who was telling the truth? A determination of the credibility of a witness is almost sacred as my Lord Eko JSC aptly puts it. How do you ascribe probative value to documents in the absence of an opportunity to judge its cogency, consistency with other evidence, or the credibility of an absent witness whose demeanor, personality had not been subjected under the fire of cross examination to the Court’s scrutiny. Rule 5 states that a complainant (petitioner) is a party to the proceedings who can be represented personally or through counsel of his choice. In this case, the petitioner abstained from both choices. The interest of justice has not been served in the circumstances of this case wherein the documents of an abandoned petition were used to consider the facts and the merits of the case to arrive at the Directions of the LPDC.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Rules 3, 4, Legal Practitioners Rules;
➥ REFERENCED (CASE)
⦿ THE NBA AND CONDUCT OF INVESTIGATION
Charles Okike v. Legal Practitioners Disciplinary Committee No.2 (2005) 7 SC Pt. 111, Pg. 75 where his Lordship stated inter alia as follows: “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.”
⦿ VARIATIONS IN LPDC PANEL MEMBERS AFFECTS ITS’ FINAL DECISION
In Adeigbe & Anor v. Salami Kusimo & Ors (1965) LPELR -25226 (SC) this issue was properly explained by Ademola JSC (as he then was) as follows: “The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the Court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the persons who gave it had not seen and heard all the witnesses, they could not appraise the evidence as a whole and decide the facts properly. Thus, it is a complaint on the soundness of the judgment itself, and not a complaint that is extrinsic to the adjudication, which is the test to apply when considering a submission on jurisdiction. We are therefore of the opinion that variations in the bench do not make the judgment a nullity; they may make it unsatisfactory, and it may have to be set aside for this reason, but whether they do or not depends on the particular circumstances of the case.”
⦿ WHERE ABSENT PANELIST RELIES ON REPORT OF OTHER COLLEAGUES
In Nwalutu v. NBA & Anor (2019) 8 NWLR Pt.1673 Pg.174 at Pg.195. wherein his Lordship stated thus: “It appears to me, and I so hold, that when an absent panelist relies on the colleague present when a witness (es) testified to render an opinion that such opinion is premised on hearsay evidence and it is perverse. A Decision in the circumstance is nothing but travesty of justice. In such circumstance also, it cannot be said that the person tried by the LPDC had received fair trial. Fair hearing, as this Court has consistently held, involves a fair trial and a fair trial of a case consists of the whole hearing. There is no difference between the two.”
➥ REFERENCED (OTHERS)