1. INTRODUCTION – For a particular discipline to claim professionalism, such discipline must satisfy three conditions of having a regulatory body, code of ethics and rigorous training and certification prior to admittance in to the profession.
To this end, all professions properly so called cannot afford to have a regulatory body setting standard rules for the practitioners as well enforcing the extant rules. Thus, it is not gainsaid that just as certain professions involving medical practitioners, media practitioners etc. have laws and regulatory bodies administering the affairs of their professions in line with the relevant codes and ethics carefully designed for that purpose, legal profession is not an exception. Legal profession has regulatory law purposely enacted to prevent professional misconducts by legal practitioners in Nigeria.
Hence, Legal Practitioners Act (LPA), CAP. L11, Laws of the Federation of Nigeria (LFN), 2004 ever since its enactment has proven to be relevant law for regulation of legal practitioners in the country. Pursuant to the Law, Legal Practitioners Disciplinary Committee is one of the notable bodies saddled with the responsibility of restoring sanity in the profession through certain powers conferred on it by law one of such is to hear and determine matters involving complaint of or allegation of gross misconduct against a particular legal practitioner.
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Against the above background, this article examines the procedure adopted by the Committee in hearing cases of misconduct against legal practitioners, its decisions and the Constitutional controversy as to where appeal against its decisions lies.
2. UNDERSTANDING THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (LPDC) – Interpretation Section of the Legal Practitioners Disciplinary Committee Rules, 2020, referred to LPDC as the “Disciplinary Committee” or the “Committee”. The Disciplinary Committee is a body empowered to hear and determine all misconduct cases in violations of the Legal Practitioners Act, LPA or the Rules of Professional Conducts (RPC). This body serves as the watchdog over all legal practitioners in Nigeria.
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The establishment and duty of the body are to protect, uphold and preserve the standard behaviour expected of any member of the legal profession. It is a fact that when a law is enacted setting out certain standard of behaviour, such law equally establishes an enforcement agency or body.
The establishment of LPDC is not an exception to the foregoing. Thus, LPDC came to being since year 2005 through the instrumentality of law. The fulcrum of the LPDC modus operandi is principally to consider and determine any case where it is alleged that a legal practitioner has breached the Rules of Professional Conduct. The establishment of this Committee is geared towards maintaining decorum in the legal profession.
It is to be noted that, the LPDC does not sit as a tribunal but as a fact finding and house cleaning body to maintain discipline and decorum in the legal profession. Decisions/directions of the Committee are binding on all legal practitioners in Nigeria unless, set aside on appeal. The Committee is headed by a Chairman who is the Attorney-General of the Federation in line with Section 10 (2) (a) of the Legal Practitioners Act, 2020.
2.1. LPDC AS A REGULATORY BODY IN THE LEGAL PROFESSION
The Legal Practitioners Disciplinary Committee is a regulatory body in the legal profession but, not the only regulatory body, in the legal profession. Thus, apart from the LPDC, there are other regulatory bodies, such as:
(a) General Council of the Bar;
(b). Nigerian Bar Association (NBA); (c). Body of Benchers;
(d). Council of Legal Education;
(e) Legal Practitioners Privileges Committee;
(f). Legal Practitioners Remuneration Committee; and
(g). National Judicial Council (NJC). It is important to note that the LPDC serves as the Committee to many of the aforementioned regulatory bodies, in the legal profession.
2.2. ESTABLISHMENT OF THE LPDC – The Legal Practitioners Disciplinary Committee (LPDC) came into being through the Legal Practitioners Act (LPA), 2020.
The reason being that LPA has being the major law regulating legal profession in Nigeria. By virtue of Section 10 of LPA, the LPDC was established when it provides thus:
“There shall be a Committee to be known as the Legal Practitioners Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty of considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be subject of proceedings under this Act.”
2.3. MEMBERSHIP AND CONSTITUTION OF THE COMMITTEE – Membership of the Legal Practitioners Disciplinary Committee is provided for by the law that created it. To this end, section 10(2) of the Legal Practitioners Act, provides thus:
“The Disciplinary Committee shall consists of” : (a). the Attorney-General of the Federation, who shall be the Chairman;
(b). the Attorney-General of the States in the Federation;
(c). twelve legal practitioners of not less than ten years’ standing appointed by the Benchers on the nomination of the Association. It should be noted that the LPA does not provide for the constitution or quorum of the Committee but this is attended to by the rules of the Committee (referred to as Legal Practitioners Disciplinary Committee Rules, 2020).
By virtue of Rule 3 (1) of the Rules, the Committee is duly constituted when it has a minimum number of three (3) as its members. The pertinent question therefore is whether the decision of LPDC can be invalidated as a result of lack of quorum. Unlike a regular court or tribunal, the decisions/directions of the LPDC does not become invalid on the grounds of lack of quorum. This is provided for in Rule 3 sub-rule 2 of the Committee Rules thus:
“A panel shall comprise of a minimum of three members of the Committee but no decision or proceeding of the Disciplinary Committee will be rendered invalid on the ground of quorum other than as set out in the Interpretation Act.”
3. PROCEDURE FOR HEARING BY THE COMMITTEE – The procedure for hearing of matters brought before the Committee is regulated by the Legal Practitioners Disciplinary Committee Rules, 2020, which is the amendment of the 2006 Rules.
These Rules and regulations are made by the Chairman of the Committee. By the provisions of Rule 4 of the Committee Rules, matters are brought before the Committee against a legal practitioner through an Originating Application. However, before filling this Originating Application to the Disciplinary Committee, a written complaint should have first and foremost be forwarded to any of the following persons:
(a). Chief Justice of Nigeria;
(b). Attorney-General of the Federation;
(c). President of the Court of Appeal or Presiding Justice of the Court of Appeal Division;
(d). Chief Judge of a State or Chief Judge of the Federal High Court or Chief Judge of the FCT, Abuja!
(e). Attorney-General of a State;
(f). Chairman, body of Benchers; and
(g). President of the Nigerian Bar Association or Chairman of a branch of the Nigerian Bar Association.
See Rule 4 sub-rule 1 (a) – (f) of the LPDC Rules, 2020. Notably, the written complaint is usually forwarded to the Nigerian Bar Association. This written complaint must have disclosed allegation of professional misconduct, display of improper and unprofessional acts or even breach of Rules of Professional Conduct etc.
The NBA, having received the written complaint, conducts its investigation as to the genuineness or otherwise of the allegation(s) contained in the complaint. After careful and thorough investigation, the NBA finds out that, such a legal practitioner has a case to answer, the NBA sends the complaints to the legal practitioner, for his comment (s), as response to the allegations contained in the complaints. The legal practitioner needs to respond to this complaints. And if, from the response (comment), the NBA confirms that such a legal practitioner has a case to answer, the NBA then makes a conclusion that, a prima-facie-case has been made against such legal practitioner. The NBA, having confirmed that, a prima-facie-case has been made against the legal practitioner, files an Originating Application to be forwarded to the LPDC.
By the provisions of Rule 4 sub-rule 2, the NBA shall forward the Originating Application within 30 days thereafter to the Committee in the forms provided in the Committee Rules. By sub-rule 4 of this Rule 4, such an Originating Application must be supported by a statement of the allegation(s) or complaints of misconduct, an affidavit of facts, setting out the grounds upon which the allegation(s) are based. i.e. the facts and matters supporting the Originating Application as well as supporting documents attached as exhibits.
In addition to the Originating Application, a Certificate of Case to Answer would be submitted alongside the forwarding of the Originating Application. It is on this Certificate of Case to Answer, the Chairman of the Disciplinary Committee, by virtue of Rule 5 sub-rule 1 of the Committee Rules, 2020, sets up an Initial Committee Member to initially consider whether or not there is a case to answer, in respect of the allegation (s) made in the Originating Application. If the initial Committee is satisfied with all or part of the allegations, it accepts all the allegations, accepts part satisfied with and refuses or dismisses the part not satisfied with. Where it does not satisfy with the whole of the allegations, the Originating Application is dismissed in its entirety, without requiring the legal practitioner to answer the allegations and without hearing the Applicant.
However, this decision must be supported with a written clear reasons, explaining the decision, to the Applicant. In the case of where the Initial Committee Member is certified that a case to answer is established against the legal practitioner, the Committee serves the legal practitioner through its Secretary with a copy of the Originating Application, Certificate of Case to Answer as well as Supplementary Statement, for him to be able to prepare for defence. The Committee having served the legal practitioner, enters hearing within a period not more than six (6) months and not less than 30 days after the service. See Rule 6 sub-rule 5 (a) and (b) of the LPDC Rules, 2020.
3.1 PARTIES TO THE LPDC PROCEEDINGS – Since the mode of bringing actions before the Legal Practitioners Disciplinary Committee is Originating Application, parties are thereby referred to as;
(a) Applicant; and
The lay-person/aggrieved person making the allegation (s) is the Applicant while the legal practitioner against whom the allegations is made is the Respondent. The lay-person/aggrieved person may at times be a party to the proceedings and at times may not, he may be represented by the Nigerian Bar Association. For example; NBA v. OFOMATA (2017 5 NWLR. (Pt. 1557) 128 @ 133. And at times, just the legal practitioner and the Committee. For example; OKIKE v. LPDC (2005) 15 NWLR. (Pt. 949) 471.
Whereas, the Respondent/legal practitioner may represent himself in person or through another legal practitioner of his choice. Notably, all other procedures by regular courts or tribunals are also carried out in the proceedings of the Committee such as adjournment, hearing of witnesses, re-hearing, written addresses etc. before fixing a date for pronouncement of decision.
3.2. APPEAL AGAINST THE DECISION OF THE LPDC – First and foremost, it should be noted that, the final say of the Legal Practitioners Disciplinary Committee is not referred to as judgement but decision or direction.
The decision of the LPDC is appealable just like any other decisions. However, where the appeal from this Committee lies might pose confusion. This confusion raises two questions thus:
(a) whether its appeal should first go to the Court of Appeal or go directly to the Supreme Court? and
(b) whether its appeal should be heard by the Appeal Committee of Body of Benchers?
It could be argued as per the first question that the provisions of S. 233 of the 1999 Constitution of the Federal Republic of Nigeria, (As Amended), is relevant. Sub-section 2 of section 233 provides: “An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of…” On the face of the provisions of s. 233 as a whole, it is not stated that appeal which does not emanate from the Court of Appeal to the Supreme Court is incompetent or amounts to frogleaping.
To give this a proper approach, this argument could be addressed in two (2) ways:
(a) If the Legal Practitioners Disciplinary Committee sits as a tribunal or as a regular court then, appeals against its decisions/directions are appealable to other Superior Courts (High Court or Court of Appeal) firstly before the Supreme Court. Meaning, appeals against the decisions/directions of the Committee can go to other lower courts before going to the Supreme Court only and if, it were to be regarded as a tribunal or a regular court.
(b) Appeals against the decisions of the Legal Practitioners Disciplinary Committee cannot be taken to any other court other than the Supreme Court of Nigeria. This is because, the LPDC does not sit and is not regarded as a tribunal nor as a regular court but, as a fact finding and house-cleaning body, to maintain the discipline and decorum in the legal profession. Be that as it may, the Supreme Court has held in the case of OKIKE v. LPDC (supra) that, the Legal Practitioners Disciplinary Committee is not a tribunal but, a fact finding and house-cleaning body to maintain discipline and decorum in the legal profession.
With this, appeal arising from the Committee could not go to any other Court other than the Supreme Court. In addition to this, S. 13 of the Legal Practitioners Act, LPA, the Supreme Court is given disciplinary jurisdiction to hear appeal from the Committee, directly.
This decision of the Apex Court in the land and the provisions of section 13 of the LPA are valid and correct. This has now been regarded as part of the additional appellate jurisdictions of the Supreme Court statutorily conferred upon it by the Legal Practitioners Act, 2020. This is an exception to the general rule that all appeals to the Supreme Court must/shall emanate from the Court of Appeal.
More so, this has been judicially followed in the case of CHARLES OBIKE v LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2005) All FWLR. (Pt. 266) 1176.
However, as per the second issue raised above, it is worthy of note that it is also premised on the latter contradictory decisions of the Supreme Court as decided in JIDE ALADEJOBI v NIGERIAN BAR ASSOCIATION (2013) LOR (12/7/2013) SC and ROTIMI WILLIAMS AKINTOKUN v LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2014) SC. 111/2006.
The Supreme Court in these cases held that appeals from the LPDC could no longer go to the Supreme Court but to the Appeal Committee of Body of Benchers (ACBB). No doubt, these decisions have been criticized to have been reached per incuriam. A decision is said to have been reached per incuriam where the statutes and principles of law that would have had effect in the decision of a court were not brought to the attention of the court. Both the statutory provisions of S. 13 of the LPA and the principle to right to fair hearing, Nemo Judex in causa sua (you cannot be a judge in your own cause).
It should be noted further that the Appeal Committee of Body of Benchers does not have statutory provisions for its establishment as a Committee and as well does not have the disciplinary control over the LPDC’s directions unlike the Disciplinary Jurisdiction of the Supreme Court in S. 13 of the LPA, 2020.
More so, the Appeal Committee of the Body of Benchers (ACBB) does not not have disciplinary control over the directions of the LPDC having been fused together with the LPDC, as one. In light of all this, it is unreasonable and unjust for the LPDC and ACBB to hear and determine matters both at the first instance and on appeal.
This would amount to breach of the rule of natural justice enunciated above. It is humbly submitted that, the Supreme Court has exclusive jurisdiction to hear and determine appeals from the LPDC, in the light of the provisions of s. 13 of the LPA, 2020.
And that, the Supreme Court can invoke and exercise its overruling power as laid down in ADISA v. OYINWOLA (2000) 10 NWLR. (Pt. 674) 116 on its decisions in JIDE ALADEJOBI v. NIGERIAN BAR ASSOCIATION (supra) and ROTIMI WILLIAMS AKINTOKUN v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (supra).
Having regards to the principle that, where lower courts are faced with two conflicting decisions of the Supreme Court, the latter decisions enjoy prevalence. The current and prevailing position of the law notwithstanding the per incuriam nature of the decisions of the Court as to where appeals arising from the Legal Practitioners Disciplinary Committee lie is that, appeals against the directions of the LPDC go to the Appeal Committee of Body of Benchers, (ACBB)
4. CONCLUSION – The Legal Practitioners Disciplinary Committee, LPDC is one of the regulatory bodies in the legal profession in Nigeria, established by the Legal Practitioners Act, LPA, 2020.
The LPDC does not sit as a tribunal but, as a fact finding and housecleaning body to maintain discipline and decorum, in the legal profession. Notwithstanding this, appeal against the decisions/directions of the Legal Practitioners Disciplinary Committee does not go to the Supreme Court but the Appeal Committee of Body of Benchers despite the clear and unambiguous provisions of s. 13 of the Legal Practitioners Act.
This came to fore as a result of the latter decisions of the Supreme Court to the contrary to s. 13 of the Act. Notwithstanding the criticism levied against the latter decisions for running contrary to the principle of Natural Justice, the position remains until set aside. It is hope that, another opportunity presents itself in future that will enable the Apex Court do the needful.