KUNLE KALEJAIYE v. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE & ANOR
(2019) LCN/4850(SC)
In The Supreme Court of Nigeria
On Friday, the 15th day of March, 2019
SC.429/2015
RATIO
WHETHER AN APPELLATE COURT CAN REFORMULATE THE ISSUES FRAMED BY THE PARTIES FOR THE DETERMINATION OF THE APPEAL
I entertain no doubt that this Court is entitled to reformulate issues framed by the parties in order to give them precision and clarity, Okoro v. The State [1988] 12 SC 191; [1988] 12 SCNJ 191; Latunde and Anor. v. Lajinfin [1989] 5 SC 59; [1989] 5 SCNJ 59; Awojugbagbe Light Industries Ltd. v. P.N. Chinukwe and Anor. [1995] 4 NWLR (pt. 390) 379; [1995] 4 SCNJ 162. Others include: Ogunbiyi v. Ishola [1996] 6 NWLR (pt.452) 12, 24; [1996] 5 SCNJ 143; Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ughobla and Ors. [2003] 1 SCNJ 463. Simply put therefore, the purpose of reformulating issues is to accentuate the real question in controversy in the interest of accuracy, clarity and brevity, Musa Sha (Jnr.) and Anor v. Da Rap Kwan and Ors [2000] 5 SCNJ 1. PER CHIMA CENTUS NWEZE, J.S.C.
CONSEQUENCE OF THE IRREGULARITY IN THE COMPOSITION OF A JUDICIAL COMMITTEE OR TRIBUNAL
The principal and I must observe the most irksome complaint in this issue is the irregularities in the composition of the Committee. Both the appellant and the first respondent were in agreement on this point, [see, pages 26 – 28 of the first respondent’s Brief]. Only one or two instances may be cited here to amplify this complaint. On March 11, 2014, PW3 testified. From the record, he was, actually, “rigorously cross-examined” by the appellant, [pages 308 – 310 of the record]. Two Members – the Chief Judge of Sokoto State, Honourable Justice A. S. Dahiru and the Attorney General of Enugu State were absent. It would equally appear that the appellant opened his defence as DW1 on the same day. On May 21, 2015, the Committee sat and gave its decision. Now, Justice A. S. Dahiru, did not participate throughout the hearing of the complaint against the appellant. Surprisingly, His Lordship joined the Committee in its deliberation relating to the decision and direction on the appellant. Here, Dahiru, CJ, who did not participate throughout the hearing of the complaint, but sat with the Committee for its decision, may be compared to an appellate Court that only has the records before it. His Lordship did not watch the demeanour, candour or partisanship and integrity of the witnesses. In Woluchem v. Gudi [2004] 3 WRN 20,52 – 53, this Court pointed out the obvious advantages of full participation in the trial process. Hear this: The learned trial Judge, [just like the other members of the Committee in the instant case], has the singular advantage of seeing and observing the witnesses. He watches their demeanour, candor or partisanship, their integrity, manner etc. He can therefore decide on their credibility and this affects a substantial part of his findings of fact. These advantages are not normally enjoyed by the appellate Court. All it has is the printed record; it does not have the other evidence – evidence of the demeanour of the witnesses and other incidental elements that go to make up the atmosphere at a trial. It cannot fully appreciate the background against which the evidence was received. It therefore is in no position to contest the findings of fact which learned trial judge has made based on such evidence that is available before him, [unarguably, Dahiru, CJ., must have found himself in this predicament at that stage of decision-making]. [Italics supplied for emphasis] See also Adele v The State (1995) LPELR – 111 (SC) 9; C- E; UAC of Nigeria Ltd v Fasheyitan and Anor (1998) LPELR – 3275 (SC) 14 – 15; G-A; Nwankpu and Anor v Ewulu and Ors (1995) LPELR – 2107 (SC) 32. Learned senior counsel for the appellant, Chief Wole Olanipekun, SAN, derided this as a clear violation of the appellant’s fundamental right. I cannot agree more with this eloquent submission. True, indeed, his submission is in the good and hallowed company of the posture of many decisions of superior Courts, Nana Tawiah v. Kwesi Ewudzi 3 WACA 52; Otwiwa and Anor v. Kwaseko 3 WACA 230; Chapman v. CFAO 9 WACA 181; Queen v. Governor – in – Council W R., Exparte Laniyan Op (1962) ALL NLR 149; Madukolu v. Nkemdllim (1962) All NLR (pt. 2) 582; Mai Rai v. Bauchi N. A. (1957) NNLR 31; Adeigbe and Anor v Kusimo and Ors (1965) All NLR (Reprint) 260; (1965) NMLR 285; Okolie Chime and Anor v Ofili Elikwu and Anor (1965) ANLR (Reprint) 449. The decisions in Sokoto State Government v Kamdex [2007] All FWLR (pt 365) 469 – 483 – 484 and UBWA v Tiv Area Traditional Council [2004] MSC 61, although on the same point of irregularity, deal with the position of irregularity in the composition of an appellate panel. They therefore need not delay us here, see, however, Shuaibu v N. A. B. Ltd [1998] 5 NWLR (pt 551) 582, per contra. The recent decision of this Court in Awolola, The Ededa of Eda – Oniyo Ekiti v The Governor of Ekiti State and Ors [Unreported Appeal No. SC 194/2008 decided on December 14, 2018, per Galumje, JSC] falls into this category. Indeed, in Nana Tawiah v. Kwesi Ewudzi (supra), Kingdom, CJ, speaking for the West African Court of Appeal, held that: … it is clear that at least two of the Tribunal members who gave judgment were not present throughout the proceedings, and did not hear all the evidence. This vitiates the whole trial, and in my opinion this Court has no option but to declare the whole proceedings before the. Tribunal and the Provincial Commissioner’s Court a nullity… [italics supplied for emphasis] Equally, Kingdom, CJ, Nigeria; Petrides, CJ, Gold Coast and Yates, J, in their joint judgement in Otwiwa and Anor v. Kwaseko (supra), held that: … the first point they [the appellants] take is that the proceedings before the Paramount Chief’s Tribunal were irregular and amount to a nullity because on the various occasions on which the case came before that Tribunal, the Tribunal was differently constituted, and final judgment was given by a Tribunal composed of members some of whom had not been present throughout. In view of recent decisions of this Court, the respondent is unable to resist this contention, and we uphold it. The appeal is accordingly allowed, and it is declared that the proceedings before the Paramount Chief’s Tribunal are a nullity. The judgment of that Tribunal including the order as to costs is set aside; so also is the judgment of the Provincial Commissioners Court, including the order as to costs… [Italics supplied for emphasis] See also, Guide on Article 6 of the European Convention on Human Rights (Right to a Fair trial) at www.echr.coe.int. accessed on March 11, 2019. In all, from all I have said so far, I have no hesitation than to declare the proceedings of the Committee and its Final Direction delivered on Thursday, May 21, 2015 a nullity. I hereby enter an order setting aside the entire proceedings, including its decision and final Direction. PER CHIMA CENTUS NWEZE, J.S.C.
WHETHER A COURT CAN GRANT A CLAIM THAT WAS NOT ASKED FOR
As the respondent did not ask for the any consequential order, I shall make no further or other orders as it is not the practice of Courts to order what was not prayed for, Ekpenyong v. Nyong [1975] 2 SC 71; Ademola v. Sodipo [1992] 7 NWLR (pt. 253) 251; Odofin v. Agu [1992] 3 NWLR (pt. 229) 350, 369; Kalio v. Daniel-Kalio [1975] 2 SC 15. This must be so for, as this Court held in Umukoro Usikaro and Ors. v. Itsekiri Communal Land Trustees and Ors [1991] 12 SCNJ 75, 91: Indeed, for a Court to make an order which no party has asked for and which the parties were not heard is a breach of the party’s constitutional right of fair hearing. PER CHIMA CENTUS NWEZE, J.S.C.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
KUNLE KALEJAIYE Appellant(s)
AND
- THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE [LPDC]
2. NIGERIAN BAR ASSOCIATION Respondent(s)
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the Legal Practitioners’ Disciplinary Committee, (hereinafter, simply, referred to as “the Committee”), Kunle Kalejaiye, the appellant in this appeal, was charged on three-count complaint by the Nigeria Bar Association, (NBA, for short), for engaging in a conduct unbecoming of a legal practitioner contrary to Rules 1, 15, 30, 31, 34, 36 and 55 of the Rules of Professional Conduct for Legal Practitioners [RPC).
As laid, the three counts of the complaint read thus:
1. That you, Kunle Kalejaiye, SAN, as a legal practitioner involved in the Election Petition before the Election Petitions Tribunal sitting in Osogbo, Osun State, sometimes (sic) in the year 2008 engaged in constant, private and confidential telephone communications with the Chairman of the Election Petitions Tribunal, Hon. Justice Thomas Naron, during the pendency of the said petitions without informing the opposing Counsel or allowing the opposing Counsel to be present and by so doing, you created the impression of special personal likely favour from the Chairman of the Petitions Tribunal and by so doing you
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have failed to maintain the high standard of professional conduct expected of a legal practitioner, by engaging in a conduct unbecoming of a legal practitioner all contrary to Rules 1, 15, 30, 31, 32, 34, 36 and 55 of the RPC, 2007.
2. That you, Kunle Kalejaiye, SAN, as a legal practitioner involved in the Election Petition before the Election Petitions Tribunal sitting in Osogbo, Osun State, sometimes (sic) in the year, 2008, engaged in constant and regular telephone communications with the Chairman of the Election Petitions Tribunal, Hon. Justice Thomas Naron, during the pendency of the said petitions conducted yourself in a manner that is likely to obstruct, delay or adversely affect the administration of justice and by so doing, you have failed to maintain the high standard of professional conduct expected of a legal practitioner, by engaging in a conduct unbecoming of a legal practitioner all contrary to Rules 1, 15, 30, 31, 32, 34 and 55 of the RPC, 2007.
3. That you, Kunle Kalejaiye, SAN, as a legal practitioner involved in the Election Petition before the Election Petitions Tribunal sitting in Osogbo, Osun State, sometimes (sic) in the year,
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2008, engaged in constant, private and confidential telephone communications with the Chairman of the Election Petition Tribunal, Hon. Justice Thomas Naron, during the pendency of the said petitions conducted yourself in a way calculated to erode confidence in the Chairman of the Election Petitions Tribunal and by so doing, you have failed to maintain the high standard of a legal practitioner, by engaging in a conduct unbecoming of a legal practitioner all contrary to Rules 1, 15,30, 31, 32, 34 and 55 of the RPC, 2007.
[Italics supplied for emphasis]
At the end of it all, the Committee found the appellant guilty of infamous conduct in the course of the performance of his duty as a legal practitioner. It thus, directed the Chief Registrar of the Supreme Court to strike out his name from the roll of legal practitioners in Nigeria. The Committee, further, directed that its order, as contained in the direction, be published, immediately, in any edition of the Punch Newspaper.
The said order, the Committee finally directed, should be served on Heads of all superior Courts of the Federation, the Inspector General of Police and all the
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Commissioners of Police. This appeal is therefore the expression of the appellant’s dissatisfaction with the above directions of the Committee.
Although the appellant formulated five issues for the determination of this appeal, the first respondent condensed the issues to only two. As would soon be evident, there is actually no need of wasting the Court’s precious time on all the issues which the appellant formulated. This is so because of the radical nature of issue five.
Thus, on my part, I even take the view that only one issue, namely, issue five – which deals with the question of the breach of the appellant’s right to fair hearing – is determinative of this appeal. I entertain no doubt that this Court is entitled to reformulate issues framed by the parties in order to give them precision and clarity, Okoro v. The State [1988] 12 SC 191; [1988] 12 SCNJ 191; Latunde and Anor. v. Lajinfin [1989] 5 SC 59; [1989] 5 SCNJ 59; Awojugbagbe Light Industries Ltd. v. P.N. Chinukwe and Anor. [1995] 4 NWLR (pt. 390) 379; [1995] 4 SCNJ 162.
Others include: Ogunbiyi v. Ishola [1996] 6 NWLR (pt.452) 12, 24; [1996] 5 SCNJ 143;
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Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ughobla and Ors. [2003] 1 SCNJ 463. Simply put therefore, the purpose of reformulating issues is to accentuate the real question in controversy in the interest of accuracy, clarity and brevity, Musa Sha (Jnr.) and Anor v. Da Rap Kwan and Ors [2000] 5 SCNJ 1.
With regard to the preliminary objection, [pages 3 – 7 of the first respondent’s Brief of Arguments], I agree with the appellants senior counsel that the objection is incompetent, NITEL v Jattau [1996] 1 NWLR (Pt 425) 392, 339; C. O. P., Adamawa State v Saratu [2015] 3 NWLR (pt 1446) 276, 300 – 301; Okoli v Morecab Finance (Nig) Ltd [2014] 17 NWLR (pt 1437) 510. I accordingly enter an order striking it out.
For the avoidance of any doubt, therefore, this appeal will only deal with the radical or fundamental issue of the alleged breach of the appellant’s right to fair hearing. That issue is encapsulated in issue five. It was framed thus:
Having regard to the Constitution of the Committee, whether its decisions/directions dated 21 May, 2015 are not totally in breach of the appellant’s right to fair hearing, and altogether, null and void
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At the hearing of this appeal on December 17, 2018, ‘Wole Olanipekun, SAN; J. K. Gadzama, SAN; Tayo Oyetibo, SAN and Duro Adeyele, SAN, appearing with Akintola Makinde, adopted the appellant’s brief filed on August 22, 2017 and deemed properly filed on March 7, 2018 and the Reply brief filed on September 25, 2018 but deemed properly filed on December 17, 2018.
With respect to this issue, that is, issue five, learned senior counsel invited the Court to note that the composition of the Committee was a recurring decimal throughout its proceedings. Citing Section 36 (1) of the Constitution of the Federal Republic of Nigeria, [the Constitution, for short], he opined that the issue of composition is intrinsic to the fulfillment of the fair hearing requirements of Section 36 (supra).
In his submission, the Court or Tribunal’s constitution must be such that guarantees its independence and impartiality, Sofekun v Akinyemi and Ors [1980] NSCQR 452; Denloye v Medical and Dental Practitioners’ Committee (1968) 1 All NLR 300. He contended that where a Panel is constituted in such a way that derogates from or affects a person’s
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right to fair hearing, whatever decision is reached by such a Panel will amount to a nullity, Agbiti v Nigerian Navy [2011] 4 NWLR (pt 1236) 219.
He further contended that the second fundamental implication of the Constitution of a Court or Tribunal which is tied inextricably to the first, is that the issue of Constitution is jurisdictional, Madukolu v Nkemdilim (1962) All NLR (pt 11) 581; Agbiti v Nigerian Navy (supra) at 220. Thus, a Court or Tribunal must have jurisdiction throughout the proceedings before it and not just at the commencement, Sokoto State Government v Kamdex Nig Ltd [2007] 7 NWLR (pt 1034) 466, 490.
He drew attention to the several factors that may affect the composition of a Panel and render any decision reached by such a Panel a nullity, Iberi v A. G. Federation. He noted that another major issue affecting the composition of a Panel is where there is a change in the composition of the Panel at some point during the proceedings, Sokoto State Government v Kamdex Nig Ltd [2007] 7 NWLR (pt 1034) 466; Ubwa v Tiv Traditional Council and Ors [2004] 11 NWLR (pt 884) 427; Adeigbe and Anor v Kusimo and Ors (1965) 1 AM NLR 260, 263.
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He drew attention to pages 3 – 4; 5 – 6; 24 – 27; 28 – 32; 33; 78; 79, 80 – 85; 95 – 96; 97 – 100; 144 – 145; 157 -159; 307- 312; 351- 354; 383 – 385; 454 – 456 of the record. These, according to him, show the various stages of metamorphosis of the Committee in terms of composition. He noted that, sequel to the appellant’s objection, the chairmanship of the Committee had to be changed, pages 5 – 6 and 24 – 27 of the record. He urged the Court to note the discrepancies in the membership of the Panel on the first day of proceedings, the day the final addresses were adopted and the day the Committee’s direction was delivered, pages 3 -4; 383 – 385 and 454 – 456 of the record.
He submitted that the right to fair hearing is a substantive right. It entails both the fairness of the hearing and of the decision. He pointed out that the Panel that delivered the Committee’s direction, being different from that which heard the matter from the beginning, cannot be said to have given the appellant a fair hearing. He pointed out that, the Committee’s proceedings and
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direction, being quasi-criminal in nature, the same Judge/Court that took the plea must adjudicate over the trial to its conclusion, Gwarzo v COP (2014) LPELR – 23470 (SC) 22; Ihekwoaba v State [2004] 15 NWLR (pt 896) 296, 309.
In his submission, the opportunity of a Court or Tribunal to observe the demeanour of a witness is an indispensable aspect of procedural jurisprudence, which is rooted in fair hearing. Garuba v Yahaya [2007] 29 NSCQLR 375, 389; Ogedengbe v Balogun [2007] 29 HCSQLR 1373, 1411; Nsirim v Nsirim [2002] 3 NWLR (pt 755) 697.
He re-iterated the long-established position that the breach of a right to fair hearing in any proceedings renders the decision a nullity, Dingyadi v INEC [2011] 18 NWLR (pt 1224) 1, 90 Idakwo v Ejiga (2002) 13 NWLR (pt 783) 156; Olumesan v Ogundepo [1996] 2 NWLR (pt 433) 628; Danladi v Dangiri [2014] LPELR – 24020 (SC) 90; A- D. He maintained that a grave infraction of the appellant’s right to fair hearing was occasioned by the variation in the composition of the Committee at different stages of the proceedings, particularly at the stage of delivering the direction.
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In his submission, issues of fair hearing do not only carry a constitutional imprimatur, they also, jurisdiction, Dingyadi v INEC [ ] 53 – 54]. As a sacrosanct principle, any breach thereof must be nullified, Danladi v Dangiri (supra) 193; Olumesan v Ogundepo (supra).
FIRST RESPONDENT’S SUBMISSIONS
On his part, D. C. Denwigwe, SAN, learned senior counsel for the first respondent, adopted the Amended brief filed on December 6, 2018. On this issue, he pointed out that, from pages 95 – 100 of the record, Hon Justice P. A. Galumje, PJCA (as he then was), presided and quorum was formed. He conceded however that the Attorney General of Plateau State, who sat as member of the LPDC on September 11, 2013, did not sit on January 30, 2013.
Equally, the Attorney General of Enugu State, who sat on October 30, 2013, did not sit on December 4, 2013. He pointed out that those two members did not sit on December 5, 2013, when rulings were delivered in interlocutory applications in the matter, pages 144 – 156 of the record. He observed that no evidence was heard on those dates.
He further noted that on March 11, 2014, the Attorney General of Enugu State was absent when
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the PW3 testified, pages 307 – 456 of the record. On May 21, 2015, when the Committee sat and gave its decision and Direction on the matter, the same members, who heard the evidence, sat. However, the Attorneys – General of Enugu and Plateau States did not sit.
APPELLANT’S REPLY
In his reply, learned senior Advocate for the appellant, Wole Olanipekun, SAN: pointed out that the first respondent, at pages 26-28 of its brief, admitted that there were irregularities in the composition of the Committee. He, therefore, submitted that parties are ad idem the question of the inconsistency in the composition of the membership of the Committee at various times during the proceedings before it.
He noted that, on March 11, 2014, Hon Justice A. S. Dahiru, the Chief Judge of Sokoto, did not participate in the hearing of evidence on that day, page 307. That was the day the appellant opened his defence and testified as DW1. He noted that, in clear violation of the appellant’s fundamental rights, when the Committee sat and gave its decision on May 21, 2015, the said Justice A. S. Dahiru, who did not participate throughout the hearing of the
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complaint against the appellant, was part of the Panel that gave the decision and Direction of the Committee in the matter. He therefore urged the Court to set aside the entire proceedings before the Committee.
RESOLUTION OF THE ISSUE
My Lords, as indicated at the outset of this judgement, I take the view that only one issue, namely, issue five – which deals with the question of the breach of the appellant’s right to fair hearing – is determinative of this appeal.
Chief Wole Olanipekun, SAN, learned senior counsel for the appellant had contended that the issue of composition [of the Committee] is intrinsic to the fulfillment of the fair hearing requirements of Section 36 (1) of the Constitution. In his submission, the Court or Tribunal’s Constitution must be such that guarantees its independence and impartiality.
This submission is unanswerable. As this Court pointed out in Innocent Nweke v The State (2017) LPELR – 42103 (SC) [per Nweze, JSC], the right in this section [that is, Section 36 … and, indeed, the other fundamental rights guaranteed in Chapter IV of the 1999 Constitution, (as amended), … were greatly
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influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR, for short] which, in turn, was influenced by the United Nations’ Universal Declaration of Human Rights of 1948. See per Lord Wilberforce in Minister of Home Affairs v Fisher (1980) AC 319, 329; also, Chima Centus Nweze, “The New Regime of Human Rights Litigation in Nigeria: Old Rights; New Enforcement Strategies,” in Chima Centus Nweze et al (eds.), Beyond Bar Advocacy (Umuahia, Nigeria: Impact Global Publishers Ltd, 2011) 394; G. Ezejiofor, Protection of Human Rights Under The Law (London: Butterworths, 1964) 182.
This background to these guaranteed rights was the proximate impulsion to the formidable prescription that their provisions should not be subjected to “the austerity of tabulated legalism.” On the contrary, they [their provisions] …call for a generous interpretation … suitable to give to individuals the full measure of the fundamental rights and freedoms referred to…,” Minister of Home Affairs v Fisher (supra).
This Court subsequently explained the rationale for this interpretive approach in
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Kim v State (1992) LPELR -1691 (SC) 11-12; F-E. Listen to this eloquent reasoning:
Human rights in our written Constitution mark a standard of behaviour which we share with all civilized countries of the world. Since the United Nations Universal Declaration of Human Rights in 1948, though it is still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate into their domestic laws, once incorporated, their application lose the character of insular isolationism. Rather they assume a universal character in their standard of interpretation arid application
[Italics supplied for emphasis]
Surely, these imperatives of their universal character prompted this Court’s view that, in interpreting the provisions of the Constitution, particularly, the fundamental rights provisions thereof, it would be well-guided by decisions of international and domestic Courts which have interpreted provisions, similarly, worded like the fundamental rights provisions of our Constitution, Olawoyin v C. O. P. (1961) LPELR (24984) 4; A-D.
In effect, long before the advocacy for the espousal of a ‘global conversation about common
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legal issues…,’ see, V. C. Jackson, Constitutional Engagement in a Transnational Era (Oxford: Oxford University Press, 2010) 102, this Court had admirably explored the dividends of that comparative approach to judicial dialogue: an approach which it endorsed in Nafiu Rabiu v. The State [1981] 2 NCLR 293; [1980] 8-11 SC 130; Senator Adesanya v. President of the Federal Republic of Nigeria [1981] 5 SC 112; Attorney General of Bendel State v. Attorney General of the Federation [1981] 10 SC 1; Ogugu and Ors v The State [1994] 9 NWLR (pt.366) 1, 22-28.
Instructively, this pro-active approach to the extraterritorial interpretation of fundamental rights provisions has gained currency in many disparate jurisdictions. Instances include: The United States of America, Thomson v Oklahoma [1988] 487 US 815; Washing v Glucksburg (1997) 521 US 702, 718; Lawrence v Texas (2003) 539 US 558; Atkins v Virginia (2002) 536 US 394; Canada, US v Burns (2001) SCR 283; Australia, Leask v Commonwealth (1996) 187 CLR 579, 615 – 616; Hong Kong, Shum KKwok Shery HKSAR (2002) 2 HKLRD 793 etc.
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Academic writers have equally endorsed this approach; see, for example, N. J. Udombana, ‘Interpreting Rights Globally; Courts and Constitutional Rights in Emerging Democracies,’ (2005) 1 AHRLJ 47-69; C. M. Zoethout, ‘The Dilemma of Constitutional Comparativism,’ ZaoRV71 (2001) 787- 806; C. M. Zoethout, ‘The European Court of Human Rights and Transnational Judicial Dialogue, References to Foreign Law and the Quest for Justification,’ (2015) ICL Journal, 9 (3), 396 -416; A. Stone, ‘Comparativism in Constitutional Interpretation,’ [2009] UMelbLRS15; S. E. Fields, ‘Constitutional Comparativism and the Eight Amendment: How A Flawed Proportionality Requirement can Benefit, from Foreign Law,’ Boston University Law Review [Vol. 86: 963, 2006] 963 etc.
Clear evidence of this judicial approach could be seen in several decisions of this Court [the apex Court in Nigeria]. Thus, in the interpretation of certain provisions of our Constitution, it [this Court] has had recourse to decisions from such other jurisdictions like Tanzania, Mbushuu and Anor v The Republic (decision of the Tanzanian Court of Appeal); Zimbabwe, Catholic Commission for Justice and Peace v Attorney General, Zimbabwe and Ors, (1993) (4) SA 239];
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South Africa, State v Makwanyane and Anor (1995) (6) BCLR 665 (CC); (1995) SACLR LEXIS 218; India, Becan Singh v State of Punjab (1983) (2) SCR 583; the US, Gregg v Georgia 428 U.S. 153, 176 -187 (1976); District Attorney for Sulfork District v James Watson and Ors (1980) 381 Mass. 648; Hungary, Jones v Wittenberg 33 FSUPP. 707.
Others include cases from: Jamaica, Noel Riley and Ors v AG for Jamaica and Anor (1983) 1 A.C. 319 (PC) 726; Earl Pratt and Anor V AG for Jamaica and Anor (1944) 2 A. C. (PC) 28, 29; Commonwealth of Bahamas, Fisher v Minister of Public Safety and Immigration and Ors (1998) 3 WLR 208 (PC); Republic of Trinidad and Tobago, Lincoln Anthony Guerra v Cipriani Baptist and Ors (1996) I. A. C. 396 (PC); see generally, Onuoha Kalu v State (1998) LPELR -1655 (SC) 41 et seq.
This approach notwithstanding, due weight must, always, be accorded to our peculiar circumstances, the generally held norms of society and our values, aspirations and local conditions, Onuoha Kalu v State (1998) LPELR -1655 (SC) 40 – 41; Nafiu Rabiu v. The State (supra); Senator Adesanya v. President of the Federal Republic of Nigeria (supra); Attorney General of Bendel State v. Attorney General of the Federation (supra); Ogugu and Ors v The State (supra).
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It is against the above background that it has been held that the right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency, Kostovski v the Netherlands, (judgement of the European Court of Human Rights of November 20, 1989, Application no. 11454/85, para 44.
As such, it provides no scope for diluting the impartiality or independence of Courts or Tribunals in order to accommodate competing collective goals, for example, costs and administrative convenience, G. Steven, Constitutionalizing Adjudication under the European Convention on Human Rights, Oxford Journal of Legal Studies, Autumn, 2003, Oxford University Press, 11.
The principal and I must observe the most irksome complaint in this issue is the irregularities in the composition of the Committee. Both the appellant and the first respondent were in agreement on this point, [see, pages 26 – 28 of the first respondent’s Brief]. Only one or two instances may be cited here to amplify this complaint.
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On March 11, 2014, PW3 testified. From the record, he was, actually, “rigorously cross-examined” by the appellant, [pages 308 – 310 of the record]. Two Members – the Chief Judge of Sokoto State, Honourable Justice A. S. Dahiru and the Attorney General of Enugu State were absent. It would equally appear that the appellant opened his defence as DW1 on the same day.
On May 21, 2015, the Committee sat and gave its decision. Now, Justice A. S. Dahiru, did not participate throughout the hearing of the complaint against the appellant. Surprisingly, His Lordship joined the Committee in its deliberation relating to the decision and direction on the appellant.
Here, Dahiru, CJ, who did not participate throughout the hearing of the complaint, but sat with the Committee for its decision, may be compared to an appellate Court that only has the records before it. His Lordship did not watch the demeanour, candour or partisanship and integrity of the witnesses. In Woluchem v. Gudi [2004] 3 WRN 20,52 – 53, this Court pointed out the obvious advantages of full participation in the trial process. Hear this:
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The learned trial Judge, [just like the other members of the Committee in the instant case], has the singular advantage of seeing and observing the witnesses. He watches their demeanour, candor or partisanship, their integrity, manner etc. He can therefore decide on their credibility and this affects a substantial part of his findings of fact. These advantages are not normally enjoyed by the appellate Court. All it has is the printed record; it does not have the other evidence – evidence of the demeanour of the witnesses and other incidental elements that go to make up the atmosphere at a trial. It cannot fully appreciate the background against which the evidence was received. It therefore is in no position to contest the findings of fact which learned trial judge has made based on such evidence that is available before him, [unarguably, Dahiru, CJ., must have found himself in this predicament at that stage of decision-making].
[Italics supplied for emphasis]
See also Adele v The State (1995) LPELR – 111 (SC) 9; C- E; UAC of Nigeria Ltd v Fasheyitan and Anor (1998) LPELR – 3275 (SC) 14 – 15; G-A; Nwankpu and Anor v Ewulu and Ors (1995) LPELR – 2107 (SC) 32.
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Learned senior counsel for the appellant, Chief Wole Olanipekun, SAN, derided this as a clear violation of the appellant’s fundamental right. I cannot agree more with this eloquent submission. True, indeed, his submission is in the good and hallowed company of the posture of many decisions of superior Courts, Nana Tawiah v. Kwesi Ewudzi 3 WACA 52; Otwiwa and Anor v. Kwaseko 3 WACA 230; Chapman v. CFAO 9 WACA 181; Queen v. Governor – in – Council W R., Exparte Laniyan Op (1962) ALL NLR 149; Madukolu v. Nkemdllim (1962) All NLR (pt. 2) 582; Mai Rai v. Bauchi N. A. (1957) NNLR 31; Adeigbe and Anor v Kusimo and Ors (1965) All NLR (Reprint) 260; (1965) NMLR 285; Okolie Chime and Anor v Ofili Elikwu and Anor (1965) ANLR (Reprint) 449.
The decisions in Sokoto State Government v Kamdex [2007] All FWLR (pt 365) 469 – 483 – 484 and UBWA v Tiv Area Traditional Council [2004] MSC 61, although on the same point of irregularity, deal with the position of irregularity in the composition of an appellate panel. They therefore need not delay us here, see, however, Shuaibu v N. A. B. Ltd [1998] 5 NWLR (pt 551) 582, per contra. The recent decision of this Court in Awolola,
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The Ededa of Eda – Oniyo Ekiti v The Governor of Ekiti State and Ors [Unreported Appeal No. SC 194/2008 decided on December 14, 2018, per Galumje, JSC] falls into this category.
Indeed, in Nana Tawiah v. Kwesi Ewudzi (supra), Kingdom, CJ, speaking for the West African Court of Appeal, held that:
… it is clear that at least two of the Tribunal members who gave judgment were not present throughout the proceedings, and did not hear all the evidence. This vitiates the whole trial, and in my opinion this Court has no option but to declare the whole proceedings before the. Tribunal and the Provincial Commissioner’s Court a nullity…
[italics supplied for emphasis]
Equally, Kingdom, CJ, Nigeria; Petrides, CJ, Gold Coast and Yates, J, in their joint judgement in Otwiwa and Anor v. Kwaseko (supra), held that:
… the first point they [the appellants] take is that the proceedings before the Paramount Chief’s Tribunal were irregular and amount to a nullity because on the various occasions on which the case came before that Tribunal, the Tribunal was differently constituted, and final judgment was given by a Tribunal composed of members some of whom had not been
22
present throughout. In view of recent decisions of this Court, the respondent is unable to resist this contention, and we uphold it.
The appeal is accordingly allowed, and it is declared that the proceedings before the Paramount Chief’s Tribunal are a nullity. The judgment of that Tribunal including the order as to costs is set aside; so also is the judgment of the Provincial Commissioners Court, including the order as to costs…
[Italics supplied for emphasis]
See also, Guide on Article 6 of the European Convention on Human Rights (Right to a Fair trial) at www.echr.coe.int. accessed on March 11, 2019.
In all, from all I have said so far, I have no hesitation than to declare the proceedings of the Committee and its Final Direction delivered on Thursday, May 21, 2015 a nullity. I hereby enter an order setting aside the entire proceedings, including its decision and final Direction.
As the respondent did not ask for the any consequential order, I shall make no further or other orders as it is not the practice of Courts to order what was not prayed for, Ekpenyong v. Nyong [1975] 2 SC 71; Ademola v. Sodipo [1992] 7 NWLR (pt. 253) 251;
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Odofin v. Agu [1992] 3 NWLR (pt. 229) 350, 369; Kalio v. Daniel-Kalio [1975] 2 SC 15.
This must be so for, as this Court held in Umukoro Usikaro and Ors. v. Itsekiri Communal Land Trustees and Ors [1991] 12 SCNJ 75, 91:
Indeed, for a Court to make an order which no party has asked for and which the parties were not heard is a breach of the party’s constitutional right of fair hearing.
Appeal allowed; the decision and the final direction of the Committee are hereby set aside.
MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother CHIMA CENTUS NWEZE JSC had obliged me a preview of his lead judgment just delivered. I entirely agree with his Lordship’s reasoning and conclusion therein that this appeal being meritorious desires to succeed. I rely on the facts of the case that brought about the appeal as captured in the lead judgment to emphasize why the appeal has to be allowed.
For the purpose of unhindered flow, be it recalled that the appellant herein was tried and convicted on a three count charge at the Legal Practitioners Disciplinary Committee. He is alleged to have conducted himself in a manner unbecoming of
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a legal practitioner contrary to the Legal Practitioners Rules of Professional Conduct.
The record of appeal shows clearly that the Committee that tried and convicted the appellant was at various times differently constituted in the course of the trial. In the first place, see pages 5, 6 and 24 – 27 of the record of appeal, the chairmanship of the Committee had changed. It is further evident from pages 3 – 4, 383 – 385 and 454 – 456 that the membership of the committee was differently comprised on the first day of its sitting, the day it was finally addressed by counsel and on the day of its decision inter-alia directing the Chief Registrar of the Supreme Court to strike out appellants name from the roll of Legal Practitioners.
Dissatisfied, the appellant has filed this appeal with his fifth and overriding issue for the determination of the appeal that reads: –
“Having regard to the Constitution of the Committee, whether its decisions/directions dated 21 May, 2015 are not totally in breach of the appellant’s right to fair hearing and altogether null and void”
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My Lords, compliance with the doctrine of stare decisis not only makes our highly demanding task less burdensome but also makes adjudication more certain and readily acceptable. This Court is bound by its previous decisions which, being still extant, are loyally applied. The issue on which the appellant seeks the determination of his appeal having been previously determined by this Court in earlier cases, the principle on the basis of which the earlier cases were determined becomes ipso facto applicable to the issue in the case at hand. Most importantly, the issue as determined in the earlier cases are predicated on virtually the same facts as the issue sought resolved in the present case. See PRINCE J.S. ATOLAGBE & ANOR V. ALHAJI AHMADU AWUNI & ORS (1997) LPELR – 593 (SC) and ADETOUN OLADEJI NIGERIA LTD V. NIGERIAN BREWERIES PLC (2007) LPELR – 160 (SC).
Now, appellant’s grouse in this appeal is that the hearing of his case at the Committee was not always before the same panel. It is contended that since the persons who gave the judgment had not seen and heard all the witnesses, they could not appraise the evidence as a whole and decide the facts properly.
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I am unable to agree with learned respondent’s counsel that it is otherwise.
In ADEIGBE & ANOR V. SALAMI KUSIMO & ORS (1965) LPELR – 25226 (SC), this Court has held appellant’s complaint to be on the soundness of the Committee’s judgment and not a submission on jurisdiction; that though variations in the bench do not make a judgment a nullity the variations make the judgment unsatisfactory and liable to be set – aside for that reason; that whether judgments which are unsatisfactory because of the variations in the bench are to be set – aside or not depends on the particular circumstances of the case. See also EGBA N.A V. ADEYANJU (1936) 13 NLR 77, TAWIAH III V. EDWUDZI 3 W.A.C.A. 52, OTWIWA V. KWASEKO 3 W.A.C.A. 230, DAMOAH V. DARBIL 12 W.A.C.A. 167 and RUNKA V. KATSINA N.A. 13 W.A.C.A. 98. Cited with approval by this Court in ADEIGBE and ANOR V. SALAMI KUSIMO & ORS (supra).
In RUNKA V. KATSINA N.A. (supra), the West African Court of Appeal held inter-alia as follows: –
“The question of the effect on the proceedings of an alteration in the Constitution of a Court during a trial has been considered by this Court before now.
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In 1936, this Court held in Nana Esseli Tawiah III v. Kwesi Ewudzi (1) that, where certain members of the Tribunal who gave judgment were not present during the whole of the proceedings, the trial was a nullity.
In 1937, in the case of Akosua Otwiwa & Anor v. Adjoa Kwaseko (2), this Court held that, as the Constitution of the Court of trial had been varied on different dates of the hearing, the trial was a nullity.
In 1943, in the case of Madam Vakoh Chapman v. C.F.A.O. & Anor (3), it was stated as obiter that a judgment, which was relied on for a plea of res judicata and which had been given by a Tribunal of which some of the members had not sat to hear the evidence, could no doubt have been set aside on appeal for that reason if there had been an appeal. (But there had not been an appeal).
All the above decisions were about proceedings in Native Courts, but that is only by chance; and the principle would apply to any Court. They also all happen to be about civil cases. There is not, as far as we are aware, any decision of this Court on the same question about a criminal trial. But in our opinion, the principle applies equally to a criminal trial.
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There is a reported decision of 1936 of the High Court of the Protectorate to this effect. It is the case of Egba N. A. v. A. L. Adeyanju (4). That was a criminal trial in a native Court. The Court at the start was constituted by the President and two members; later on the two members were changed and later again they were changed again (to different ones and not back to the former two).The President sat throughout the trial. The accused was convicted; he appealed to the Native Court of Appeal but his appeal was dismissed, and he further appealed to the High Court.
In the High Court it was held (Graham, Paul, J.) that a conviction obtained in such circumstances was bad and must be quashed; and also that even if such procedure were in accordance with native law and custom it was not such native law and custom as that Court should uphold, as it was repugnant to natural justice, good conscience and equity.
With this decision we respectfully agree and we adopt it. We think it essential that all the members of the Court which gives the judgment in a criminal case should have heard all the evidence. And as this does not appear to have been so
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in this case now under consideration, in so far as the circumstances of its trial are apparent to us, we are of opinion that the appeal must be allowed and the conviction quashed.” (Underlining mine for emphasis).
In the case at hand where the members of the Committee which gave the judgment against the appellant similarly did not hear all the evidence, this Court is bound by all the foregoing decisions the Court cited and applied in its previous decisions. The decision being appealed against is indeed null and void. It is for that reason and the fuller reasons advanced in the lead judgment that I also allow the appeal and abide by the consequential orders reflected in the lead judgment.
KUMAI BAYANG AKA’AHS, J.S.C.: I had the privilege of reading before now the judgement of my learned brother, Nweze JSC allowing the appeal because the membership of the Committee which found the appellant guilty of infamous conduct and directed that his name be struck out from the roll of legal practitioners in Nigeria was not consistent. The composition of the Disciplinary Committee is intrinsic to the fulfilment of the requirements of Section 36 of
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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. See: Dr. O. G. Sofekun v. Chief N. O. Akinyemi & Ors (1980) 5-7 SC 1; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Madukolu v. Nkemdilim (1962) 1 All NLR 587, Nwalutu v. Nigerian Bar Association Unreported decision No. SC.30/2016 delivered on 21 February, 2019.
Section 11 (2) of the Legal Practitioners Disciplinary Committee (Amendment) Decree No. 21 of 1994 provides as follows: –
“11(2) The Disciplinary Committee shall consist of –
(a) a chairman who shall not be either the Chief Justice of Nigeria or a Justice of the Supreme Court;
(b) two Justices of the Court of Appeal one of whom shall be the President of the Court of Appeal
(c) two Chief Judges
(d) two Attorneys-General who shall be either the Attorney-General of the Federation and the Attorney-General of a State or two State Attorneys-General; and
(e) four members of the Association who are not connected with either the
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investigation of a complaint against a legal practitioner for determination of the Disciplinary Committee.”
In L.P.D.C v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300 this Court held that in the exercise of its disciplinary authority over erring legal practitioners, the Legal Practitioners Disciplinary Committee must observe the rules of natural justice. Where the panel which sat and heard the complaint against the erring legal practitioner is different from the panel that found the appellant guilty of infamous conduct, this will render the proceedings and decision reached a nullity. See: Madukolu v. Nkemdilim and Nwalutu v. Nigerian Bar Association supra. This is because the rules of natural justice relating to fair hearing has been breached. A person who did not take part when witnesses were called by the complainant and the defence cannot be in a position to decide who has told the truth from the person who was lying. Thus where credibility of a witness is in issue the person who is in the vantage position to decide it will be the one who heard evidence on both sides and watched the demeanor of the witnesses.
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See: Adeigbe & Anor v. Kusimo & Ors (1965) All NLR 260; Sokoto State Government v. Kamdex (Nig) Ltd (2007) 7 NWLR (Pt. 1034) 466; Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374.
My learned brother, Nweze JSC, drew attention to the composition of the panel on March 11, 2014 and May 21, 2015 when the Committee sat and gave its decision. On 11 March, 2014, PW3 testified and was rigorously cross-examined by the appellant. The appellant also testified on that date when two members of the Committee were absent. They are the Chief Judge of Sokoto State, Hon. Justice A. S. Dahiru and the Attorney-General of Enugu State. On 21 May, 2015 when the Committee sat and gave its decision Justice A. S. Dahiru participated in the deliberation relating to the decision and direction taken against the appellant. This obviously rendered the proceedings and decision of the Tribunal a nullity.
It is for this reason and the more detailed reasons contained in the judgement of my learned brother, Nweze JSC that I too find the appeal meritorious and accordingly allowed it and set aside the decision and final direction of the Legal Practitioners Disciplinary Committee.
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AMIRU SANUSI, J.S.C.: I had the advantage of reading before now, the Judgment just delivered by my learned brother C. C. Nweze JSC. I am at one with his reasoning and the conclusion he arrived at therein, that this appeal has substance and should be allowed. I accordingly allow it while setting aside the decision of the Legal Practitioners Disciplinary Committee. I have nothing more useful to add. Appeal allowed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Chima Centus Nweze, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal is meritorious and it is accordingly allowed.
I abide by all the orders contained in the lead Judgment.
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Appearances:
Chief Wole Olanipekun, SAN; J. K. Gadzama, SAN; Tayo Oyetibo, SAN and Duro Adeyele, SAN; with them Akintola Makinde For Appellant(s)
C. Denwigwe, SAN, with him J. O. Asoluka and C. U. Onyeukwu For Respondent(s)
Appearances
Chief Wole Olanipekun, SAN; J. K. Gadzama, SAN; Tayo Oyetibo, SAN and Duro Adeyele, SAN; with them Akintola Makinde For Appellant
AND
C. Denwigwe, SAN, with him J. O. Asoluka and C. U. Onyeukwu For Respondent
