WAZIRI v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE & ANOR (2021)

WAZIRI v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE & ANOR

(2021)LCN/5014(SC)

In The Supreme Court

On Friday, June 18, 2021

SC.469/2017

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Between

MAMMAN WAZIRI APPELANT(S)

And

1. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE 2. NIGERIAN BAR ASSOCIATION RESPONDENT(S)

RATIO

THE PRINCIPLE OF LAW ON THE RECSTITUTION OF PANELS

In Sokoto State Govt. v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (P. 1034) 466 at 489 paras. C. D; 503, paras F, the Supreme Court held that:

“Where a Court is differently constituted during the hearing of a case, or an various occasion when it met, or where one member did not hear the whole evidence the effect on the proceedings is to render it null and void. In the instant case, the appellant’s appeal was heard by the Court of Appeal on 5-11-2003 by a panel of Justices of that Court made up of Ogebe, Aderemi and Chukwuma-Eneh, JJCA whereas the judgment of the Court of Appeal was delivered by the panel of Justices comprising of Galadima, Aderemi and Chukwuma-Eneh; JJCA. Consequently, the judgment was a nullity. See Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427; Adeigbe v. Kusimo (1965) 1 All NLR (Reprint) 260.”
Indeed the principle of law is especially pertinent where the reconstitution of the panel occurred in the course of hearing oral evidence which involves evaluation of credibility of witnesses rather than a hearing on printed records. Thus in Arum v. Nwobodo (2013) LPELR-20390(SC), (2013) 10 NWLR (Pt.1362) 374, the Supreme Court reiterated the position of the law as enunciated in Adeigbe & Anor. v. Kusimo & Ors; (1965) 4 NSCC 188, as follows:

“In that judgment Sir Adetokunbo Ademola CJN observed at page 191 supra that –
“We are in no doubt about the correctness of what the learned appeal judge said in his judgment that there are abundant decisions in the High Court and in the West African Court of Appeal on the point that where a Court is differently constituted during the hearing of a case, or on various occasions when it met or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. The learned judge had in mind among others the following cases- Egba N.A. v. Adeyanju (1936) 13 NLR 77; Tawiah III v. Ekwudzi (1936) 3 WACA 52: Otwiwa v. Kwaseko (1937) 3 WACA 230; Damoah v. Tarbil (1947) 12 WACA 167; Runka v. Katsina N. A. (1950) 13 WACA 98”. Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

THE COMPOSITION OF THE PANEL CHANGES WHILE ORAL EVIDENCE IS STILL BEING TAKEN AND THE RE-CONSTITUTED PANEL REACHES A DECISION, THAT DECISION WILL BE DECLARED A NULLITY

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication in that if, the composition of the panel changes while oral evidence is still being taken and the re-constituted panel reaches a decision, that decision will be declared a nullity. The reason is not far to seek. A trial Court basically deals with evaluation of evidence and one of the key ingredients to be considered is the credibility of witnesses where their demeanor forms an integral part of that evaluation.” Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

PRINCIPLE OF FAIR HEARING

Therefore the principles of fair hearing cannot be glossed over as infringed upon. I agree that the Committee is at liberty to constitute the rules by which it can carry out its procedural duties hence my humble view is that it streamlines in simple ways, the hearings and decision so that evidence would without question be the same panel that would reach the decision. Nothing short of this would suffice. See Gwarzo v. C.O.P. (2014) LPELR – 23470 (SC) 22; Ihekwoaba v. State (2004) 15 NWLR (Pt. 896) 296, 309; Garuba v. Yahaya (2007) 29 NSCQLR 375, (2007) 2 NWLR (Pt.1021) 390; Ogedengbe v. Balogun (2007) HCSQLR 1373 (2007) 9 NWLR (Pt. 1039 ) 380; Nsirim v. Nsirim (2002) 3 NWLR (Pt. 755) 697. Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

COURT OF COMPETENT JURISDICTION

Invariably, the term ‘Court of competent jurisdiction’ denotes a Court of law that has the power and authority to adjudicate upon an action, matter or controversy. Also termed ‘competent Court’. Contradistinctively, a Court devoid of competent jurisdiction could be likened to what is notoriously known in legal parlance as a ‘Kangaroo Court’. Jurisprudentially, a Kangaroo Court denotes:
1. A self-appointed tribunal or mock Court in which the principles of law and justice are disregarded, perverted or parodied. Kangaroo Courts may be assembled by various groups, such as prisoners in a jail (to settle disputes between inmates) and players on a baseball team (to punish teammates who commit fielding errors).
2. A Court or tribunal characterized by unauthorized or irregular procedures, esp. so as to render a fair proceeding impossible.
3. A sham legal proceeding.
See Black’s Law Dictionary 11th edition (2019) @ 445 and 448. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C

WHER COURT OR TRIBUNAL IS DIFFERENTLY CONSTITUTED DURING PROCEEDINGS

DEFECT IN COMPETENCEOF A TRIBUNAL OR COURT
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication in that if the compositions of the panel changes while oral evidence is still being taken and the re-constituted panel reaches a decision, that decision will be declared a nullity. The reason is not far to seek. A trial Court basically deals with evaluation of evidence and one of the key ingredients to be considered is the credibility of witnesses where their demeanour forms an integral part of that evaluation.
Per Ademola, C.J.N. @ 191. See also Arum v. Nwobodo (2013) LPELR – 20390 (SC), (2013) 10 NWLR (Pt.1362) 374; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The appellant a legal practitioner, was tried for professional misconduct. Before the Legal Practitioners Disciplinary Committee (LPDC) he defended a six count charge. On 22nd May 2017 the LPDC comprising J.B. Daudu, SAN – Chairman, and 5 other members namely – Hon. Justice U. Umokoro, CJ, Delta State: Hon. Justice P. D. Damulak, CJ, Plateau State; Yusuf Ali, SAN; Emmanuel C. Ukala, SAN, and Tijjani Inuwa Dutse, mni, delivered the decision of the LPDC which found him guilty of “infamous conduct in the course of the performance of his duty as a legal practitioner as set out in counts 1, 2 and 3 of the complaint”. Upon his conviction, the LPDC directed the Chief Registrar of the Supreme Court to strike out (his) name from the roll of legal practitioners. It is against this decision and direction that the appellant has appealed. One of the issues he has formulated for the determination of this appeal is: whether the variation of the membership of the Legal Practitioners Disciplinary Committee on different occasions during the pendency of the proceedings before it does not render the direction of the committee nullity?

The appellant, in paragraphs 3.4 – 3.13, had summarized the facts on which this issue predicates thus:
3.4 Hearing of oral evidence commenced on the 14th April, 2016, and subsequent sittings were held on 8th May, 2016; 30th June, 2016; 27th October, 2016; 21st November, 2016; 22nd November, 2016; 27th February, 2017 and the direction of the committee was given on 22nd May, 2017. The constitution of the membership of the Committee during the hearing of the complaint on these various dates was varied and inconsistent.
3.5 On 14th April, 2016, when the evidence of PW1 was heard in part, the Committee was constituted by J. B. Daudu, SAN, as Chairman and Umukoro (CJ), Damulak (CJ), Ukala, SAN, Dyesris-Sijuade, (A.-G.,), Amechi, SAN, Aguma, SAN (A.-G.,) as members. (Page 310 of the record of appeal).
3.6 The constitution of the committee on 18th May, 2016 when hearing of evidence of PW2 continued and was concluded. The committee was constituted by J. B. Daudu, SAN, as Chairman, and Galinje, PJCA (AHTW), Umukoro, (CJ), Damulak (CJ), Ali SAN, Inuwa-Outse, Dyeris-Sijuade (AG) as members (Pages 338 of the record of appeal).
3.7 The Committee was again differently constituted on 30th June, 2016 when evidence of DW1 and DW2 were heard. J. B. Daudu, SAN, sat as chairman, and while Galinje (PJCA), Umukoro (CJ), Inuwa-Dutse, Dyeris Sijuade as members. (Page 341 of the record of appeal).
3.8 There was yet another variation in the constitution of the Committee on 27th October, 2016, when the evidence of DW3 was heard. The composition of the Committee had J. B. Daudu, SAN, as Chairman, and Umukoro (CJ), Damulak (CJ), Inuwa-Dutse, Dyeris-Sijuade (A.-G.,) as members, (Page 351 of the record of appeal), while on 21st November, 2016 and 22nd November, 2016, on which dates the evidence of DW4, DW5 and DW6 were heard, the constitution of the Committee comprised of J.B. Daudu, SAN, as Chairman, and Damulak (CJ), Umukoro (CJ), Ali, SAN, Inuwa-Dutse, Ukala, SAN, Dyeris-Sijuade (A.-G.,) as members. (Page 358 & 419 of the record of appeal).
3.9 Final addresses were adopted on 27th February, 2017, on which date the composition of the committee had J. B. Daudu, SAN, as Chairman, and Bulkachuwa (PCA), Umukoro (CJ), Ukala, SAN, Inuwa-Dutse as members. (Pages 496 of the record of appeal) .
3.10 On 22nd May, 2017, when the direction of the Committee was delivered, the Committee was constituted by J. B. Daudu, SAN as Chairman, and M. Umukoro (C.J. Delta); P. D. Damulak (C.J. Plateau); Yusuf Ali, SAN; E. C. Ukala, SAN; Tijjani Inuwa-Dutse as members. (Pages 554 of the record of appeal).
3.11 What is clear from the foregoing is that the composition of the Committee from the commencement of hearing to the date of its direction was so varied that only two (2) of the members of the Committee who delivered the direction of 22nd May, 2017 (J. B. Daudu, SAN, Chairman, and Umukoro (CJ), member) were consistent on the Committee throughout evidential hearing of the complaint against the appellant. Consequently, not all members of the Committee who gave the direction in the proceedings leading to this appeal had the benefit of hearing the entirety of the oral evidence upon which the direction was based before reaching the said direction.
3.12 P.D. Damulak C.J. was not on the panel on 30th June, 2016 when two of the defendant’s witnesses (DW1 and DW2) were heard. (Page 341 of the record of appeal). Yusuf Ali, SAN was not on the panel on 14th April, 2016 when PW1 gave evidence, and PW2 gave evidence in chief (Page 310 of the record of appeal), on 30th June, 2016 when DW1 and DW2, gave evidence (Page 341 of the record of appeal) and on 27th October, 2016 when DW3 gave evidence (Page 351 of the record of appeal).
3.13 Ukala, SAN was not on the panel on 8th May, 2016 when PW2 concluded his evidence, on 30th June, 2016 when DW1 and DW2 testified, and on 27th October, 2017, when DW3 gave evidence. Inuwa-Dutse was also not on the panel on 14th April, 2016 when PW1 testified.

He argues, on these facts, that his right to fair hearing had been violated or comprised. It is settled that proceedings of a disciplinary committee of a professional body, as the LPDC is quasi-judicial and is quasi-criminal in nature and so the body shall observe all the rules of fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, and the principles of natural justice:L.P.D.C. v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Okike v. LPDC (2005) 15 NWLR (Pt. 949) 471. Accordingly, the absence of fair hearing and/or violation of this fundamental procedure renders the decision of the judicial or quasi-judicial body a nullity, no matter how well delivered; Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 75) 201; Otwiwa v. Kwaseko (1937) 3 (WACA) 230; Egba N.A. v. Adeyanju (1936) 13 NLR 77; Damoah v. Taibil (1947) 12 WACA 167; Runka v. Katsina N.A. (1950).13 WACA 98.

It is also settled that it is not permitted for a judge or quasi-judicial body to decide without hearing the facts on which the decision predicates. The rationale for this, per Mc Donald, J. in R. v. Hallifax City Committee on Works, Ex. P. Johnsonton (1962) DLR (2d) 45 at 47 is that bias and ignorance alike preclude fair judgment upon the merits. Put affirmatively; he who decides on facts must hear the evidence on which the decision is premised.
It is not permissible, as well as unreasonable, for the judex to act on hearsay evidence of the proceedings.

The appellant submits, on authority of Adeigbe & Anor. v. Kusimo & Ors (1965) 4 NSCC 188; Sokoto State Government v. Kamdex(Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466 (SC) at 489; Arum v. Nwobodo (2013) LPELR -2039 (SC), (2013) 10 NWLR (Pt. 1362) 374, that where a Court or judicial body is differently constituted during the hearing of a case, or on various occasions when it sat or when one member did not hear the whole evidence (or part of the whole evidence), the effect on the proceedings is to render them null and void. The vitiating factor is the fact of the judex deciding on the evidence or testimony he did not hear; and the decision depends basically on the evaluation of the totality of the evidence and the key ingredient to be considered is the credibility of witnesses where demeanour forms an integral part of that evaluation. See Mogaji v. Odofin (1978) 4 SC 91; Boy Muka v. The State (1976) 9-10 SC 305.
The procedure adopted by the LPDC in the trial of the appellant, whereby the panel was continually reconstituted and some members who never at all heard the evidence participated in taking the decision, culminating in the direction, was criticized and condemned for tantamounting to denial of fair hearing in Nwalutu v. LPDC (2019) All FWLR (Pt. 997) 68, (2019) 8 NWLR (Pt. 1673) 174; Kunle Kalejaiye v. LPDC (2019) LPELR-47035 (SC), (2019) 8 NWLR (Pt. 1674) 365 which cited, with approval, the principle established in the cases of Adeigbe & Anor. v. Kusimo & Ors. (1965) LPELR-25226 (SC); Ubwa v. Tiv Traditional Council (2004) 11 NWLR (Pt. 884) 427; Sokoto State Government v. Kamdex (Nig.) Ltd. (supra). On the principle of stare decisis these weighty authorities are compelling and they must be followed as I did in SC.334/2019 and SC.454/2018 just delivered today, 18th June, 2021.
The 2nd respondent had submitted on the authority of Ndukwe v. LPDC (2007) 5 NWLR (Pt. 1026) 1 that “mere variation in the composition of a panel of tribunal or Court; which does not affect the substance of the inquiry cannot touch or affect the judgment or decision of such a body neither does such variation render the judgment or decision a nullity.” The issue in Ndukwe v. LPDC (supra) was whether a person or persons who were not part of the panel that took the decision can read or deliver the decision on behalf of those that took the decision. Such reading or delivery of decision of another does not actually “affect the substance of the inquiry.” This is not the situation in the instant case. Ndukwe v. LPDC is clearly distinguishable therefore. A proper reading of Section 11 of the Legal Practitioners Act, Cap. L.11, 2004, particularly subsection thereof, supports the judicial authorities above referred. It provides, inter alia, that “no person shall be a member of the Disciplinary Committee for the purpose of reaching a decision which has been deferred or further deferred unless he was present, as a member of the Committee, when the decision was deferred.”
My Lords, the appellant has made out a case warranting the interference of this Court on this issue. The appellant’s right to fair hearing was denied and/or compromised. It was perverse of the LPDC to have allowed members who did not hear all the evidence or part of the evidence to participate in the taking of the decision, culminating in the direction that was predicated on the credibility of the totality of the evidence. Accordingly, I allow the appeal. The decision including the direction of the LPDC dated 22nd May, 2017 and the entire proceedings leading thereto being a nullity, are hereby set aside. The matter is hereby remitted to a panel differently constituted for hearing de novo.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ejembi Eko, J.S.C. and to underscore the reasoning from which the decision came about, I shall make some remarks.

This is an appeal against the direction of the Legal Practitioners Disciplinary Committee, Coram: J.B Daudu SAN as Chairman, Umukoro CJ, Damulak (CJ), Yusuf Ali SAN, Ukala SAN and Inuwa-Dutse delivered on the 22nd day of July, 2017 directing the Chief Registrar of the Supreme Court to strike out the name of appellant from the roll of legal practitioners in Nigeria.

Facts Briefly Stated
The respondent, a legal practitioner was engaged to manage the property known as Plot 1228 Garki 2 Abuja, pursuant to a Management Agreement (exhibit P150-P153) at page 154 of the record, executed between the appellant and one Alh. Mohammed Nahauni (DW3), the donee of a Power of Attorney from Mr. Felix Opene, the deceased owner of Plot 1228 Garki 2 Abuja, in respect of the said property.

Following the demise of Mr. Felix Opene in July 2007, who died intestate, his wife Mr. Clara Opene (PW2) obtained letters of administration on 11th January, 2010 which letters of administration were a subject matter of a separate litigation.

PW2, as administrator of the estates of the late Mr. Felix Opene, wrote a petition to the Abuja Branch of the N.B.A against the appellant complaining of professional misconduct arising from the appellant’s management of the property, which the appellant had managed pursuant to a Management agreement between himself and DW3 (exhibit P150-153). The petition by PW2 formed the basis of a three count charge filed before the respondent, to which the appellant pleaded not liable.

Hearing commenced on 30th June, 2016 after a preliminary objection that was dismissed by the committee. The 2nd respondent called two witnesses and also tendered several documents, while the appellant called witnesses and also tendered several documents. The direction of the trial committee was delivered on 22nd May, 2017, the 1st respondent, in which the Chief Registrar of the Supreme Court was ordered to strike out the name of the appellant from the roll of all legal practitioners. The appellant was dissatisfied and filed this appeal on 23rd May, 2017, praying this honourable Court to set aside the aforesaid direction of the committee.

On the 24th day of March, 2012 date of hearing, learned counsel for the appellant Samson Eigege Esq adopted the brief of argument filed on 4/5/2018 and deemed filed on 30/10/2019, in which he distilled from issues for determination, viz:-
1. Whether the variation of the membership of the Legal Practitioners Disciplinary Committee on different occasions during the pendency of the proceedings before it does not render the direction of the Committee a nullity. (Ground 4)
2. Whether the Legal Practitioners Disciplinary Committee was properly constituted in accordance with its enabling law in operation. (Ground 5).
3. Whether the Charge before the committee was competent, having been filed contrary to an order of a Court of record.
4. Whether, having regard to the evidence before the Committee and the applicable law, the Committee was right in coming to the conclusion that the appellant was guilty of infamous conduct in the performance of his duty as a legal practitioner (Grounds 6, 7, 8, 9, 10 & 11).

The appellation’s counsel also adopted the reply brief filed on 30/8/2019 and deemed filed on 24-3-2021.

For the 1st respondent, learned counsel, Adebayo Adedeji Esq., adopted the brief of argument filed on 21/1/2019, and deemed filed on 30/10/2019. He formulated three issues for determination, viz:-
i. Whether or not the variation of the membership of the 1st respondent on different occasions during the pendency of the proceedings against the appellant renders the direction of the 1st respondent delivered on the 22nd of May, 2017 a nullity. (Ground 4).
ii. Whether or not the 1st respondent was properly constituted in laws when it heard and determined the complaint against the appellant. (Ground 5).
iii. Whether having regard to the state of evidence led before the 1st respondent, the 1st respondent was correct in concluding that the appellant was guilty of infamous conduct in discharging his professional duties and directing the appellant’s name be struck off the roll of legal practitioner in Nigeria. (Ground 3, 6, 7, 8, 9, 10 and 11).

Chief Oseloka Osuigwe, learned counsel of the 2nd respondent adopted the brief of argument filed on 25/2/2020., and deemed filed on 24-3-201. He nominated three issues for determination, which are as follows:

1. Did the variation of the membership of the 1st respondent on different occasions during the pendency of the proceedings against appellant render the decision against him a nullity?
2. Was the Legal Practitioners Disciplinary Committee not properly constituted when it heard the matter against appellant without the Attorney General of the Federation sitting as its Chairman?
3. Was there credible evidence on the Appellant that the 1st respondent could rightly come to the conclusion that the appellant was guilty of infamous conduct in a professional respects?

I shall dwell solely on issue No. 1 of the appellant which is the same in substance with the issue one in the brief of the 1st respondent and that of the 2nd respondent respectively.

Issue No. 1
Whether the variation of the membership of the Legal Practitioners Disciplinary Committee on different occasions during the pendency of the proceedings before it does not render the direction of the committee a nullity.
Learned counsel for the appellant contended that the law is settled that where a Court is differently constituted on various occasions in the course of hearing a matter, or when one or more of the members did nor hear the whole evidence adduced in the course of hearing, the effect is to render the proceedings and the decision of the Court a nullity. He cited the case of Sokoto State Govt. v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt. 1034) 466 at 489 etc.

It was contended for the appellant that from the record, the composition of the committee from the commencement of the hearing to the date of its direction was so varied that only two of the members of the committee who delivered the direction of 22nd May, 2017 (J.B. Daudu SAN Chairman and Umukoro (CJ) member were consistent on the committee throughout evidential hearing of the complaint against the appellant. That the consequence is that, not all members of the committee who gave the direction in the proceedings leading to this appeal had the benefit of hearing the entirety of the oral evidence upon which the direction was based before reaching the said direction.

Learned counsel for the 1st respondent submitted that the variation in the members of the committee at various sittings cannot affect the proceedings and the directions of the 1st respondent. That the effect of item 1 of the supplementary provision and Section 11 (2) of the LPA is that the quorum of the 1st defendant at any sitting shall be five and that was all that mattered. He cited Ndukwe v. LPDC & Anor (2007) LPELR-1978 (SC), (2007) 5 NWLR (Pt.1026) 1.

That the appellant has not demonstrated how the variation has occasioned injustice to him. He referred to Magaji v. The Nigerian Army (2008) 8 NWLR (Pt. 1089) 338.

Learned counsel for the 2nd respondent advanced the view that the fact that it was not always the same bench that heard appellant’s issue is of no moment as to the rightness or soundness of its decision. He cited Adeigbe & Anor v. Kusimo & Ors. (1965) All NLR 248.

The thrust of the difference in the views of the appellant as against those of the 1st and 2nd respondents is that, while the appellants contends that the variations in the panel at the hearing and at the point of decision vitiated the proceedings and direction and the opposition point of view of the respondents being that the variations at the various stages would not be fatal as no miscarriage of justice had been occasioned. To see the way forward, it needs be that a revisits to the details of these variations be made.

Hearing of oral evidence commenced on the 1st April, 2016, and subsequent, sittings were held on 8th May, 2016; 30th June, 2016; 27th October, 2016; 21st November, 2016; 22nd November, 2016; 27th February, 2017 and the direction of the Committee was given on 22nd May, 2017. The constitution of the membership of the committee during the hearing of the complaint on these various dates was varied and inconsistent.

On 14th April, 2016, when the evidence of PW1 was heard in part, the Committee was constituted by J.B. Dauda, SAN, as Chairman and Umukoro, (CJ), Damulak (CJ), Ukala, SAN, Dyesris-Sijuade, (AG), Amechi, SAN, Aguma, SAN (AG) as members. (Page 310 of the record of appeal).

The constitution of the Committee on 18th May, 2016 when hearing of evidence of PW2 continued and was concluded. The Committee was constituted by J.B Daudu, SAN, as Chairman, and Galinje, PJCA (AHTW), Umukoro (CJ), Ali, SAN, Inuwa-Dutse, Dyeris-Sijuade (AG) as members. (Page 338 of the record of appeal).

There was yet another variation in the constitution of the Committee on 27th October, 2016, when the evidence of DW3 was heard. The composition of the Committee had J.B..Dauda, SAN, as Chairman, and Umukoro (CJ), Damulak (CJ), Inuwa-Dutse, Dyeris-Sijuade (A.-G.,) as members, (Page 351 of the record of appeal), while on 1st November, 2016 and 22nd November, 2016, on which dates the evidence of DW4, DW5 and DW6 were heard, the constitution of the Committee comprised J.B. Daudu SAN as Chairman and Damulak (CJ), Umukoro (CJ), Ali SAN, Inuwa-Dutse, Ukala SAN, Dyeris-Sijuade (A.-G.,) as members.

Final Address were adopted on 27th February 2017, on which date the composition of the Committee had J.B. Daudu, SAN, as Chairman, and Bulkachuwa (PCA), Umukoro (CJ), Ukala, SAN, Inuwa-Dutse as members. (Page 496 of the record of appeal).

On 22nd May, 2017, when the direction of the Committee was delivered, the committee was constituted by J.B. Daudu, SAN as Chairman, and M. Umukoro (C.J. Delta); P. D. Damulak (C.J. Plateau); Yusuf Ali, SAN; E. C. Ukala, SAN; Tijani Inuwa-Dutse as member. (Page 554 of the record of appeal).

What is clear from the foregoing is that the composition of the Committee from the commencement of hearing to the date of its direction was so varied that only two of the members of the committee who delivered the direction of 22nd May, 2017 (J. B. Daudu, SAN, Chairman, and Umukoro (CJ), Member) were consistent on the committee throughout evidential hearing of the complaint against the appellant. Consequently, not all members of the Committee who gave the direction in the proceedings leading to this appeal had the benefit of hearing the entirety of the oral evidence upon which the direction was based before reaching the said direction.

P. D. Damaluk, C.J. was not on the panel on 30th June, 2016 when two of the defendant’s witnesses (DW1 and DW2) were heard. (Page 341 of the record of appeal). Yusuf Ali, SAN was not on the panel on 1st April, 2016 when PW1 gave evidence, and PW2 gave evidence in Chief (Page 310 of the record of appeal), on 30th June, 2016 when DW1 and DW2 gave evidence (Page 341 of the record of appeal) and on 27th October, 2016 when DW3 gave evidence.

Ukala, SAN was not on the panel on 8th May, 2016 when PW2 concluded his evidence, on 30th June, when DW1 and DW2 testified and on 27th October, 2017, when DW3 gave evidence. Inuwa-Dutse was also on the panel on 14th April, 2014 when PW1 testified.

Clearly the numerous variations in the composition of the Committee as recounted above deprived the Appellant a fair hearing, as the substantial majority of the members of the Committee who gave its direction (four out of six members namely Damaluk, CJ, Ali, SAN, Ukala, SAN, and Inuwa-Dutse (Page 554 of the record appeal) had not seen and heard all the witnesses and consequently, they could not appraise the evidence as a whole and decide the facts properly. The contention of learned counsel for appellant that apart from the fact that the Committee which delivered its direction was substantially comprised of members who did not hear the entirety of the oral evidence, the only two members who were consistent throughout the evidential hearing do not constitute the quorum of the Legal Practitioners Disciplinary Committee as provided by Paragraph 1 of the Second Schedule to the Legal Practitioners Act, CAP L11, LFN, 2004, pursuant to which the Committee below was constituted, which provides that “the quorum of the disciplinary committee shall be five”.

In the case at hand, the two members who were consistent in the varied composition of the committee during the hearing of the complaint before it up to the decision (J.B. Daudu, SAN, Chairman, and Umukoro (CJ), member were substantially less than the quorum of five members of the committee who delivered the decision of the Committee, and also lower than the majority of the prescribed quorum of the committee.

The facts of the matter have been laid out above; this Court has given its guideline light on what should obtain where variations of panels are made when proceeds take more. It shall refer to some of the decided cases.
In Sokoto State Govt. v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (P. 1034) 466 at 489 paras. C. D; 503, paras F, the Supreme Court held that:
“Where a Court is differently constituted during the hearing of a case, or an various occasion when it met, or where one member did not hear the whole evidence the effect on the proceedings is to render it null and void. In the instant case, the appellant’s appeal was heard by the Court of Appeal on 5-11-2003 by a panel of Justices of that Court made up of Ogebe, Aderemi and Chukwuma-Eneh, JJCA whereas the judgment of the Court of Appeal was delivered by the panel of Justices comprising of Galadima, Aderemi and Chukwuma-Eneh; JJCA. Consequently, the judgment was a nullity. See Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427; Adeigbe v. Kusimo (1965) 1 All NLR (Reprint) 260.”
Indeed the principle of law is especially pertinent where the reconstitution of the panel occurred in the course of hearing oral evidence which involves evaluation of credibility of witnesses rather than a hearing on printed records. Thus in Arum v. Nwobodo (2013) LPELR-20390(SC), (2013) 10 NWLR (Pt.1362) 374, the Supreme Court reiterated the position of the law as enunciated in Adeigbe & Anor. v. Kusimo & Ors; (1965) 4 NSCC 188, as follows:
“In that judgment Sir Adetokunbo Ademola CJN observed at page 191 supra that –
“We are in no doubt about the correctness of what the learned appeal judge said in his judgment that there are abundant decisions in the High Court and in the West African Court of Appeal on the point that where a Court is differently constituted during the hearing of a case, or on various occasions when it met or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. The learned judge had in mind among others the following cases- Egba N.A. v. Adeyanju (1936) 13 NLR 77; Tawiah III v. Ekwudzi (1936) 3 WACA 52: Otwiwa v. Kwaseko (1937) 3 WACA 230; Damoah v. Tarbil (1947) 12 WACA 167; Runka v. Katsina N. A. (1950) 13 WACA 98”.
He took time to explain the difference between the cases where the judgment is declared null and void and those where the judgment is considered to be unsatisfactory or irregular on account on the variation in the trial bench in these words:
“In the first of these cases, in which the defendant’s witnesses were not heard by two members of the Court, the principle was enunciated that a judgment could not be allowed to stand which was given by judges who had not heard all the evidence; in the other four cases: the Appeal Court expressly held that the proceedings were a nullity on that account?
…
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication in that if, the composition of the panel changes while oral evidence is still being taken and the re-constituted panel reaches a decision, that decision will be declared a nullity. The reason is not far to seek. A trial Court basically deals with evaluation of evidence and one of the key ingredients to be considered is the credibility of witnesses where their demeanor forms an integral part of that evaluation.”

Learned counsel for the 1st respondent had argued that the variation in the members of the committee, at various sittings cannot adversely affect the proceedings and directions of the 1st respondent as the committee was variously constituted in line with the extant laws which provided for a quorum of five and the three of whom must be those mentioned in paragraphs and of Section 10(2) of the Act. He cited in aid the case of Ndukwe v. LPDC & Anor. (2007) LPELR-1978 (SC), (2007) 5 NWLR (Pt. 1026) 1 which I shall quote thus:-
“It therefore means that learned counsel for the appellant concedes the contention of the learned counsel for the 1st respondent that by the combined effect of item 1 of the Second Schedule to Cap. 207 Laws of the Federation, 1990 as amended by Section 15(a) and of Decree No. of 1994 read together with Section 11(2) of Decree No. 21 of 1994 the quorum of the Disciplinary Committee shall be five persons three of whom shall be as stated in the enactment. It is clear from page 23 of the record that six and five persons as members were present at the hearing and judgment and that they all belongs to the class of persons provided in Section 11(2) of Decree No. 21 of 1994. From the above, it is my considered view that the argument of learned counsel for the appellant on the issue of quorum is misconceived and is consequently discountenanced by me. On the alleged participation of Mr. Nwanodi at the delivery of the judgment when he did not participate in the earing of evidence learned counsel for 1st respondent had submitted that the inclusion of the name of Mr. Nwanodi in the record of that day is an error committed by the typist who inadvertently included that name particularly as the panel in which Mr. Nwanodi is a member held proceedings soon after the delivery of the judgment in question. As I started earlier in this judgment there is no reply brief by the appellant. In any event, the status of the 1st respondent as an administrative tribunal or body, must be constantly kept in focus so as not to confuse its proceedings and judgments with those of the regular Courts constituted by three or more members just as the Court of Appeal and say, the Supreme Court where each member of the panel that heard a particular case must render his own opinion or judgment/decision in writing. Even then all those who sat and heard the case need not be present when the judgment is read in Court. It has to be noted that learned counsel for the appellant has not accused Mr. Nwanodi of being a signatory to the judgment delivered that day, in fact he concedes that he is not a signatory thereto. It is equally not the case of the appellant that the decision of the 1st respondent was not deliberated upon by the members of the panel before it was arrived at and reduced into writing by the chairman who signed and read same in public. It is important to note that at the delivery thereof five of the six members who heard evidence were present and none dissented or expressed a contrary opinion. It is very clear therefore that the fact that the other members who did not express a contrary opinion confirms their agreement with the judgment as read by the Chairman of the panel and I therefore come to the irresistible conclusion that the decision of the 1st respondent in the circumstances of the case cannot be vitiated.” Per Onnoghen J.S.C. (as he then was)

The analogy between Ndukwe v. LPDC (supra) to the instant case as postured by the respondent is far from visibly as the facts in that case are different from those in this present case. In Ndukwe (supra), it was the mistakenly inserted name of Mr. Nwanodi while in this instance the issue is that of variously and differently constituted panels.

Along similar lines of submission of the 1st respondent, learned counsel for the 2nd respondent stated that the LPDC is a Tribunal and not a regular Court and so is an administrative body with power to decide its own procedure and lay down rules for the conduct of inquiry regarding discipline within the legal profession. That the fact that the bench of the LPDC panel which heard the matter was not always the same did not occasion any miscarriage of justice. The stance of the respondents is difficult to swallow within the concept of the right to fair hearing and the facts of this case where the constitution of the panels were juggled at every inch of the way at the various stages of hearing.

There is no abandoning the situation on ground that the committee is a quasi-criminal panel in nature and there should not be an infraction where the fair hearing rights of the person facing allegations which could result in the loss of his professional status and standing is at risk. Therefore the principles of fair hearing cannot be glossed over as infringed upon. I agree that the Committee is at liberty to constitute the rules by which it can carry out its procedural duties hence my humble view is that it streamlines in simple ways, the hearings and decision so that evidence would without question be the same panel that would reach the decision. Nothing short of this would suffice. See Gwarzo v. C.O.P. (2014) LPELR – 23470 (SC) 22; Ihekwoaba v. State (2004) 15 NWLR (Pt. 896) 296, 309; Garuba v. Yahaya (2007) 29 NSCQLR 375, (2007) 2 NWLR (Pt.1021) 390; Ogedengbe v. Balogun (2007) HCSQLR 1373 (2007) 9 NWLR (Pt. 1039) 380; Nsirim v. Nsirim (2002) 3 NWLR (Pt. 755) 697.

The conclusion is that from the foregoing, the breach of the right to fair hearing in the proceedings leading to the direction has rendered the decision a nullity. See Dingyadi v. INEC (2011) 18 NWLR (Pt.1224) 1; Idakwo v. Ejiga (2002) 13 NWLR (Pt. 783) 156.
The appeal has merit and I allow it.
I abide by the consequential orders made.
Appeal allowed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal has arisen from the direction of the Legal Practitioners Disciplinary Committee (1st respondent herein) to the effect that the name of the appellant be struck off the roll of legal practitioners in Nigeria. The direction was delivered on 22nd May 2017.

Although the appellant has raised four issues for determination, I am of the humble opinion that the first issue, if resolved in his favour, is sufficient to dispose of the appeal. The issue is whether the variation in the membership panel of the 1st respondent’s committee that tried the appellant does not render the direction delivered a nullity? While the appellant asserts the affirmative, the respondents contend that in so far as there was a quorum at each sitting, the inconsistency in the panel at different stages throughout the hearing and at the final rendering of the direction amounted to a mere irregularity, which could not vitiate the proceedings or the direction.
My learned brother, Ejembi Eko, J.S.C, has dealt extensively with these opposing contentions in the lead judgment and has ably resolved the issue. I agree entirely with the reasoning and conclusion reached and make just a few remarks to show my support.
Happily, the issue in contention has been dealt with on several occasions by this Court. In a very recent decision in Gbenoba v. L.P.D.C. &. Anor. (2021) LPELR-53064 (SC) @ 22-30 B-A, (2021) 6 NWLR (Pt.1773) 499, the history of decisions of this Court on the issue was analysed. It was noted that the earlier position of the Court was that inconsistency in the panel constituted a mere irregularity and did not amount to a denial of fair hearing. See: Adeigbe &. Anor. v. Salami Kusimo & Ors. (1965) LPELR-25226 (SC); Ogiamien & Anor v. Ogiamien (1967) LPELR-25508 (SC); Ndukwe v. LPDC & Anor (2007) LPELR-1978 (SC), (207) 5 NWLR (Pt. 1026) 1.
It was however noted that the Court has shifted away from that position in more recent cases. See: Sokoto State Govt. v. Kamdex (Nig.) Ltd. (2007) LPELR-3093 (SC), (2007) 7 NWLR (Pt.1034) 466; Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427 @ 436A-438 C-E; Adeleke &. Anor. v. INEC & Ors. (2019) 6-7 SC (Pt. 1) 155, (2020) 11 NWLR (Pt.1734) 17.
Ogunwumiju, J.S.C. opined in Gbenoba’s case, at pages 25-26 F-D (supra):
“In recent times, the Court has whole heartedly flipped on the side of fair hearing on this issue to hold that where there is a variation, it affects the proper constitution of a panel to sit and so adversely affects jurisdiction and the trial would be a nullity. This Court now considers so (sic: such) a procedure adopted during the sitting not merely unsatisfactory but unconstitutional. It cannot but be so.
It is not open for any other person or authority who did not hear the whole case to participate in rendering a decision. A person or authority cannot be substituted or appear in addition to deliver a ruling, directions or judgment, if that person or authority did not participate in hearing the facts or arguments that led to the conclusion. This will breed injustice and gross miscarriage of justice is a natural consequence thereof. How can there be “fair hearing” when there was no hearing at all by all the authorities or persons who delivered or agreed to the directions?”
Other cases referred to by His Lordship include:
Kalejaiye v. L.P.D.C. (2019) 8 NWLR (Pt.1674) 365; Nwalutu v. N.B.A. (2019) 8 NWLR (Pt. 1673) 174 @ 195; Nyesom v. Peterside &. Ors (2016) LPELR – 40036 (SC), (2016) 7 NWLR (Pt. 1512) 452 @ 504- 505. The position of this Court is therefore firmly settled. I am not persuaded to depart from it.
I agree entirely with my learned brother that the direction of the 1st respondent delivered on 22nd May 2017 as a nullity. It is hereby set aside. I agree with the consequential orders made in the lead judgment.
Appeal allowed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The present appeal has originated from the decision (direction) of the Legal Practitioners’ Disciplinary Committee holden at Abuja, delivered on July 22, 2017 in petition no. BB/LPDC/174/15. By the decision (direction) in question, the Committee below ‘convicted’ the appellant for infamous conduct in the course of his performance as a legal practitioner.

Background Facts
The genesis of the appellant’s travails leading to the instant appeal is traceable to 21/05/2015. That was the day he was caused to appear before the committee below. Mr. J.S. Okutepa, SAN with Ebowe, Ayeni and Miss Adamu appeared for the petitioner I. J. while Mbatsavdile with M.P, Anaukyaa appeared for the appellant.

On 11/11/2015, the appellant’s application filed on 10/09/2015 seeking dismissal of the petition on ground of non-fulfillment of condition precedent, was moved and adjourned to 03/12/2015 for ruling. Eventually, the ruling was delivered by the committee below to the conclusive effect:
8. We have critically scrutinized the order in issue and the parties against which they were directed and we find that none of them is a party to this current proceeding i.e. BB/LPDC/174/14 N.B.A. v. Mamman Waziri. In the circumstances, the law is settled that an order of Court cannot apply to a person who is not a party to the proceedings …
In the light of the foregoing, we come to the conclusion that the application lacks merit and it is therefore dismissed. The hearing and adjudication of this complaint will proceed forthwith.
See pages 298 to 300 of the record of appeal.

By the original notice of appeal, filed on 23/05/2017, the appellant sought the following reliefs:
1. An order allowing the appeal.
2. An order setting aside the decision of the LPDC delivered on 22nd day of May, 2017.
3. An order reinstating the appellant on the roll of lawyers in the Supreme Court of Nigeria.
4. Any other relief that this Court may deem fit to make in the circumstances.

On March 24, when the appeal came up for hearing, the learned counsel addressed the Court and accordingly adopted the articulated submissions contained in the respective briefs thereof. Thus, warranting the Court to reserve judgment to today.

The appellant’s brief spans a total of 27 pages. At page 4 thereof, four issues have been raised for determination, viz:
1. Whether the variation of the membership of the Legal Practitioners Disciplinary Committee on different occasions during the pendency of the proceedings before it does not render the direction of the Committee a nullity. (Ground 4).
2. Whether the Legal Practitioners Disciplinary Committee was properly constituted in accordance with its enabling law in operation. (Ground 5).
3. Whether the charge before the committee was competent, having been filed contrary to an order of a Court of record.
4. Whether, having regard to the evidence before the Committee and the applicable law, the Committee was right in coming to the conclusion that the appellant was guilty of infamous conduct in the performance of his duty as a legal practitioner (Grounds 6, 7, 8, 9, 10 & 11).

Contrariwise, the 1st respondent’s brief deemed filed on 30/10/2019, spans a total of 29 pages. At page 11 thereof, three issues have been counched:
1. Whether or not the variation of the membership of the 1st respondent on different occasions during the pendency of the proceedings against the appellant renders the direction of the 1st respondent delivered on the 22nd of May, 2017 a nullity. (Ground 4).
2. Whether or not the 1st respondent was properly constituted in law when it heard and determined the complaint against the appellant. (Ground 5)
3. Whether having regard to the state of evidence led before the 1st respondent, the 1st respondent was correct in concluding that the appellant was guilty of infamous conduct in discharging his professional duties and directing the appellant’s name be struck off the roll of legal practitioners in Nigeria. (Grounds 3, 6, 7, 8, 9, 10 and 11).

The 2nd respondent’s brief was filed on 25/02/2020 but deemed on 24/03/2021. At page 8 thereof, three issues have equally been canvassed:
1. Did the variation of the membership of the 1st respondent on different occasions during the pendency of the proceedings against appellant render the decision against him, a nullity?
2. Was the Legal Practitioners Disciplinary Committee not properly constituted when it heard the matter against appellant without the Attorney General of the Federation sitting as its Chairman?
3. Was there credible evidence on which 1st respondent could rightly come to the conclusion that the appellant was guilty of infamous conduct in a professional respect?

Most instructively, of the four issues canvassed by the appellant in the brief thereof, the issues 1 and 2 are very crucial. The 1st issue raises the very fundamental question of whether the variation of the membership of the LPDC on different occasions during the pendency of the proceedings before it does not render the direction of the committee a nullity. The issue is distilled from ground 4 of the notice of appeal. On the other hand, the second issue raises the fundamental question of whether the LPDC was properly constituted in accordance with its enabling law in operation. Distilled from ground 5 of the notice of appeal.

Indeed, the law is settled, that where a Court or Tribunal is differently constituted in the course of the trial or hearing of the action before it, or on various occasions when it sits or where a member thereof was absent during the trial or hearing, the proceedings and decision arrived at are null and void, thus liable to be set aside on appeal. See Sokoto State Govt. v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt. 1034) 466 – Per Mohammed, J.S.C. (as he then was) @ 489 paragraphs C – D; 503 paragraphs F – H.
In one of the locus classicus on the issue, Adeigbe v. Kusimo (1965) 4 NSCC 188, this Court aptly held:
We are in no doubt about the correctness of what the learned appeal Judge said in his judgment that there are abundant decisions in the High Court and in the West African Court of Appeal on the point that where a Court is differently constituted during the hearing of a case or on various occasions when it met or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. The learned Judge had in mind among others the following cases – Egba N. A. v. Adeyanju (1936) 13 NLR 77; Tawiah III v. Ekwudzi (1936) 3 WACA 52; Otwiwa v. Kwaseko (1937) 3 WACA 230; Damoah v. Tarbil (1947) 12 WACA 167; Runka v. Katsina N. A. (1950) 13 WACA 98.…
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication in that if the compositions of the panel changes while oral evidence is still being taken and the re-constituted panel reaches a decision, that decision will be declared a nullity. The reason is not far to seek. A trial Court basically deals with evaluation of evidence and one of the key ingredients to be considered is the credibility of witnesses where their demeanour forms an integral part of that evaluation.
Per Ademola, C.J.N. @ 191. See also Arum v. Nwobodo (2013) LPELR – 20390 (SC), (2013) 10 NWLR (Pt.1362) 374; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Hence, against the background of the foregoing postulates and the detailed reasoning and conclusion reached in the lead judgment just delivered by my learned brother, the Hon. Justice Ejembi Eko, J.S.C. I do not entertain any hesitation in coming to the most inevitable conclusion, to the effect that the instant appeal is meritorious, thus ought to be allowed by this Court.

Accordingly, the appeal is hereby allowed by me. I abide by all the consequential orders made in the lead judgment.
Appeal allowed.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft, a copy of the lead judgment just delivered by my learned brother, Ejembi Eko, J.S.C. I totally agree with the reasoning and conclusion contained therein, to the effect that there is merit in the appeal, same ought to be allowed.

The consistency in the membership of the LPDC throughout the hearing until the delivery of its direction goes to the issue of right to fair hearing guaranteed by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Where a member or members of a Court or Tribunal who were not present during the hearing culminating in its decision partake in the rendering of its decision, the result is to render the decision of the Court or Tribunal a nullity. See Nwalutu v. NBA & Anor (2019) LPELR – 46916 (SC), (2019) 8 NWLR (Pt.1673) 174; Sokoto State Govt. of Nigeria & Ors. v. Kamdex (Nig.) Ltd. (2007) LPELR – 3093 (SC), (2007) 7 NWLR (Pt.1034) 466; Adeigbe & Anor. v. Kusimo & Ors. (1965) LPELR – 25226 (SC). The variation in the composition of the LPDC during the hearing of the complaint against the appellant and delivery of the direction therefore renders the whole proceedings a nullity.

For the above reasons and the more elaborate ones contained in the lead judgment, I join my learned brother in allowing the appeal. I abide by the consequential orders made in the lead judgment.
Appeal allowed.

Appearances:

Samson Eigege, Esq., with him, I. T. Mbastaudue, Esq. Nkechi Udeze, Esq., Oche Emmanuel, Esq. and Samira Ahmed, Esq. For Appellant(s)

Adedayo Adedeji, Esq., with him, B. B. Daudu, Esq., F. Al-Mustapha, Esq.; M. C. Ezeobidi, Esq. and Haruna Ozi-Salami, Esq. – for 1st Respondent
Chief G. O. Osuigwe, Esq., with him, Joy Etiaba, Esq. – for 2nd Respondent For Respondent(s)

LawCare Nigeria

WAZIRI v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE & ANOR (2021)

laweditor

YOU MAY HAVE MISSED

OVERVIEW OF TRANSFER PRICING IN NIGERIA

LAWS REGULATING ADVERTISING COMPANIES IN NIGERIA

GUIDE TO PROPERTY INVESTMENT IN LAGOS STATE

GUIDE TO INVESTING IN NIGERIA

laweditor

Related Story

YOU MAY HAVE MISSED