Anthony Ojigho V. Nigerian Bar Association & Anor (2019)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the direction of the Legal Practitioners’ Disciplinary Committee (LPDC) of the Body of Benchers contained in the Direction of the LPDC dated December 2nd, 2013 which found the Appellant guilty of infamous conduct in the course of discharging his professional duties as a legal practitioner contrary to Rules 1, 14 and 15 (3) of the Rules of Professional Ethics and punishable under Section 12 (1)(a) of the Legal Practitioners Act 2004 (as amended). Consequently, the Committee directed that the Registrar of the Supreme Court of Nigeria should strike out his name from the Roll of Legal Practitioners. Being dissatisfied with the Direction, the Appellant exercised his constitutional right of appeal to this Honourable Court vide a Notice of Appeal of five (5) grounds dated and filed 20th December, 2013.
SUMMARY OF FACTS:
The 1st Respondent received a petition dated 14th day of June 2009 from the firm of Emeka Madiebo & Co against the Appellant for fraudulently increasing the price of a property which the Petitioner (Banjo Onanubi) paid the vendor
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through the Appellant. The Appellant added additional sum of N10 Million to the price of the property on the pre that same would be paid over to the buyer. The Petitioner alleged that the Appellant failed to do so. It was alleged that the Appellant fraudulently induced the Petitioner into paying N40 Million for a property instead of N30 Million that was demanded by the vendor.
The case of the Petitioner was that it was the Vendor who informed him that the excess sum of N10 Million had been returned to be paid to him through the Appellant being in excess of reserved price. When confronted, the Appellant admitted the wrongdoing and made an initial refund of N3 Million and issued a cheque for the repayment of outstanding N7 Million which he later countermanded (stopped). At the hearing, the Appellant chose not to appear at the LPDC but was instead represented by his Counsel, Mathias Emeribe.
The LPDC observed that where a Solicitor engrosses an agreement for both vendor and purchaser and both of them rely on his legal advice, he is Counsel or Solicitor to both parties irrespective of the fact that one of them introduced him to the other.
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The LPDC found that in the circumstances of the case the Appellant owed a fiduciary duty to both parties to the transaction and that he was in breach of same. The LPDC finally held that it was imprudent of the Appellant not to have entered a formal defence and to have sought to defend himself of very serious allegations of professional misconduct and impropriety through the avenue of his Counsel’s written address.
The LPDC found the Appellant guilty of the infamous conduct in the course of the performance of his duty as a legal practitioner and accordingly directed the Chief Registrar of the Supreme Court to strike out his name from the Roll of Legal Practitioners. Being dissatisfied by the decision of the LPDC, the Appellant filed this appeal.
ISSUES FOR DETERMINATION:
The Appellant formulated two issues at paragraph 3.00 (3.01) (a) and (b) of its Appellant’s Brief, thus:
“1) Whether having regard to the findings of the Committee in the face of the evidence adduced during trial, there has not been a miscarriage of justice giving rise to the direction of the Committee
2) Whether it is the duty of the Respondents to prove
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the Appellant’s guilty rather than the Appellant proving his innocence.”
The 1st Respondent also formulated two issues on page 5 of the Respondent brief, thus:
“1) Whether the 1st Respondent discharged the burden placed on it to present a prima facie proof that the Appellant was guilty of infamous conduct in the course of the performance of his duty as a legal practitioner as set out in the complaint against him
2) Whether having regard to the material before the 2nd Respondent (LPDC) and the Law, the LPDC was right in coming to the conclusion that the appellant was guilty of infamous conduct in a professional respect and directing the Appellant’s name to be struck off the Roll of Legal Practitioners in Nigeria.”
On its part, the 2nd Respondent formulated one issue for determination at page 8 its brief, thus:
“1) Whether having regard to the evidence led before the 3rd Respondent by the 1st Respondent, the 2nd Respondent was correct in coming to the conclusion that the Appellant was guilty of infamous conduct in discharging his professional duties and directing the Appellant’s name to be struck off the Roll of Legal Practitioners in Nigeria (Grounds 1 2, 3, 4, and 5).
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Given the facts of this appeal, I have taken time to carefully re-consider the two issues formulated by both Appellant and the 1st Respondent and the sole issue formulated by the 2nd Respondent. While the Appellant argued both issues separately, the 1st Respondent argued its issues 1 and 2 together. The 2nd Respondent also argued the sole issue formulated. However, I’m persuaded that the issue(s) in this appeal could be argued together as one issue, given the trend of the arguments respectively canvassed by the parties. It is my considered view that a sole issue, carefully structured would sufficiently and effectively determine this appeal. This is because arguments of parties headed in one direction thus making it unnecessary for surplusage of issues. That said, in view of the foregoing background, I have modified the issues respectively formulated by the parties, thus;
“Whether having regard to the evidence led before the LPDC (2nd Respondent) by the 1st Respondent, the 2nd Respondent was right in coming to the conclusion that the allegation of infamous conduct in discharging professional duties has been sufficiently proved
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to warrant the direction that the Appellant’s name be struck off the Roll of Legal Practitioners in Nigeria.”
CONSIDERATION AND RESOLUTION OF THE ISSUE:
ISSUE
“Whether having regard to the evidence led before the LPDC (2nd Respondent) by the 1st Respondent, the 2nd Respondent was right in coming to the conclusion that the allegation of infamous conduct in discharging professional duties has been sufficiently proved to warrant the direction that the Appellant’s name be struck off the Roll of Legal Practitioners in Nigeria.”
In his submission, the Appellant acknowledged the settled position of the law that it is not the business of the appellate Court to substitute its own views on facts for those of the trial Court. The Appellant specifically acknowledged that this Court rarely disturbs the finding of fact of the lower Court unless it is found to be perverse, citing NDUKWUE VS LPDC & ANOR (2007) SC (Pt.III) 253 at 291, ODUWOLE VS AINA (2001) 17 NWLR (Pt.741) 1 at 47, UDENGWU VS UZUEGBU (2003) 7 SC, 64 and BENKAY NIGERIA LIMITED VS CADBURY NIGERIA (2012) 2 NWLR (Pt.1306) 596.
The Appellant pointed out that the 2nd Respondent’s
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direction was premised on the finding that the Appellant acted as a solicitor to both the vendor and the purchaser (Petitioner) in the transaction and thereby owe both of them a fiduciary relationship. The Appellant contended that the facts before the Committee do not support the finding that the Appellant acted as a Solicitor to the Petitioner. The Appellant contended vehemently that the Petitioner had always maintained that the Appellant acted for the ‘Seller and not as the Seller”, which the Appellant submitted was an admission pursuant to Section 123 of the Evidence Act, citing AROMOLARAN VS OLADELE (1990) 7 NWLR (Pt.162) 262 at 368, BIEZAN EXCLUSIVE GUEST HOUSE LTD VS UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (Pt.1246) 246 at 285.
The Appellant contended under its issue two, now being considered as part of issue one, that the burden of proof in the circumstances of this case, shifts from one party to the other and never static, especially in civil cases, citing the case of B.O.N. VS ONIYO (2002) FWLR (Pt.129) 1492; AGBAKOBA VS INEC (2008) 12 S.C. (Pt.III) 158. The Appellant contended that unless discharged, the legal or
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general burden of proof never shifts and that in the instant case, the burden of proving the Appellant’s guilt is on the Respondents and never with the Appellant.
The Appellant further contended that there was no Solicitor/Client relationship which in sine qua non in sustaining the charge. The Appellant argued that the Committee was wrong to have relied on weight of evidence as basis for finding for the Respondents against the Appellant, due to the strategy adopted by the Appellant in resting his case on that of the Respondent. The Appellant further submitted that the Committee was wrong in treating this as an admission of guilt on the part of the Appellant. The Appellant relied on the case of EXECUTORS OF THE ESTATE OF LATE ABACHA VS EKE-SPIFF & ORS (2009) 2-3 SC (Pt.II) 93 at 131-133.
The Appellant contended that he had destroyed the case of the Respondents on cross-examination and the Respondent also failed to prove their case making it needless for the Appellant to put up a defence to the charge. The Appellant contended further that Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees the right of silence, and
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placed reliance on the case ofADEKUNLE V THE STATE (2006) 6 SC 218 at 230. The appellant then concluded by urging this Court to uphold this appeal.
On its part, the 1st Respondent contended that the evidence of PW.1 was sufficient for the Committee to believe and act by attaching probative value to it, as the Appellant had admitted the wrong-doing and actually paid back the sum of N3 million and issued post-dated cheque for the balance of N7 million to the PW.1 (the Petitioner) which cheque was countermanded and dishonoured on the instruction of the Appellant. The 1st Respondent also countered the Appellant by arguing that the Committee was right in holding that the Appellant’s defence would amount to nothing as he failed to appear to testify as well as produce the agreement and other documents alluded to in his defence. The 1st Respondent submitted that the Appellant was fully conscious of the fact that he took a big risk by resting his case on the Respondents’ and paced reliance on cases of: NWEDU VS THE STATE (1985) 3 NWLR (13) 444; ALI & ANOR VS THE STATE (1988) 1 NWLR (Pt.68) at 1; THE EXECUTOR OF THE ESTATE OF GEN. SANNI ABACHA VS. EKE-SPIFF (Supra).
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The 1st Respondent contended further that the Appellant was clearly in violation of Rule 1 of the Rules of Professional Conduct for Legal Practitioners, 2007 when he inflated or marked up the selling price of the property from N30 Million demanded by the vendor to N40 million under the pre that the excess sum of N10 Million would be handed over to the buyer’s (PW.1) banker. This, the 1st Respondent contended, was made worse by the Appellant’s act of collecting the money and failing to hand it over to him. The 1st Respondent stressed further that this was made complicated by failure to pay the outstanding sum of N7 million to the Petitioner. To buttress its contention, the 1st Respondent relied on the case of ITEOGU VS L.P.D.C (2009) 17 NWLR (Pt.1171) 614 SC.
The 1st Respondent contended that the Appellant was solicitor to both parties in the transaction and relied on the definition of ‘solicitor’ in the BLACK’S LAW DICTIONARY (7TH EDITION) and the case of SAMUEL OSIGWE VS PSPLS MANAGEMENT CONSORTIUM LTD & ORS (2009) 3 NWLR (Pt.1128) 378.
The 1st Respondent argued that contrary to the submission
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of the Appellant on the PW.1 testimony under cross-examination that the Appellant was the vendor’s lawyer; it is not every contradiction, inconsistency or discrepancy that will affect the substance of a case that has been proved by credible evidence and unchallenged evidence. The 1st Respondent relied on the case of OMISADE V QUEEN (1964) 1 All L. R. 233, QUEEN VS EKANEM (1960) SC 14.
The 1st Respondent asserted that by collecting N10 million from the vendor and failing to return to the Petitioner renders the Appellant liable in fiduciary relationship in respect of the remaining N10 Million. To buttress its contention, the 1st Respondent relied on the case of AKINGBADE VS ALAO (1973) 4 WSCA 128 and the provision of Section 14(1).
In its final submission, the 1st Respondent urged this Court to hold that the LPDC was right in its decision that the Appellant breached Rules 1, 14, and 15 (3) of the Rules of Professional Conduct for Legal Practitioners, 2007 and to follow the decision in ITEOGU VS LPDC (Supra). The 1st Respondent concluded by asserting that the 2nd Respondent (the LPDC) properly evaluated evidence before it on the principle in ADISA VS LADOKUN 1 All NLR (Pt.2) 18
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at 31 and that the direction given by the 2nd Respondent was justified in the circumstances of this appeal. For these and other reasons analysed above, the 1st Respondent urged this Court to dismiss this appeal and refuse the reliefs sought by the Appellant.
The arguments of the 2nd Respondent on the sole issue formulated in its Brief are similar to that of the 1st Respondent. The 2nd Respondent asserted that the effect of uncontroverted pieces of evidence is that the 1st Respondent in the circumstance was able to discharge the burden placed on it, relying on the case of CBN VS OKOJIE (2015) LPELR-24740 (SC); ELIZABETH MABAMIJE VS HANS WOLFGANG OTTO (2016) LPELR -26058 (SC). The 2nd Respondent contended that the Appellant knew what he was up to by resting his case on that of the Respondents. The 2nd Respondent also relied on THE EXECUTOR OF THE ESTATE OF GEN. SANNI ABACHA VS. EKE-SPIFF (Supra); AKANBI VS ALAO (1989) 3 NWLR (Pt.108) 118; (1989) 5 SCNJ 1 and NEPA VS OLAGUNJU & ORS (2005) 3 NWLR (Pt.913) 603 at 632 and AGUOCHA VS AGUOCHA (2015) 1 NWLR (Pt.906) 165 at 184.
The 2nd Respondent pointed out in its arguments that the
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misconduct of the Appellant could be viewed from two perspectives; for demanding N40 Million from the vendor as against N30 Million and failure to refund the balance of N10 Million, and acknowledgement and admission of the alleged fraud by initial repayment of N3 Million and refusal to refund the outstanding N7 Million to the Petitioner. The 2nd Respondent also relied on the case of ITEOGU VS LPDC (Supra).
In its concluding submission, the 2nd Respondent argued that having regard to the evidence led before the 2nd Respondent, it was correct in coming to the conclusion that the Appellant was guilty of infamous conduct in discharging his professional duties and justified in the direction in the interest of the legal profession that the name of the Appellant be struck-off the Roll of Legal Practitioners in Nigeria.
The Appellant filed a Reply Brief dated 28th March, 2017. The Reply Brief raises no new issues beyond re-arguing the earlier contention that the decision of the 2nd Respondent (LPDC) was perverse and ought to be set-aside by this Court.
Having carefully considered the arguments respectively canvassed by the parties to this appeal, one fact keeps
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resonating on which the sole issue formulated for the determination of this appeal is anchored. I again tried to think through the issue in this appeal: what was the actual alleged infamous conduct committed by the Appellant And given the circumstances of this case, examined within the precinct of the facts and applicable provisions of the law and Rules, was the 2nd Respondent right in coming to the conclusion that the allegation of infamous conduct in discharging professional duties has been sufficiently proved Was the conduct actually infamous to warrant the direction that the Appellant’s name be struck off the Roll of Legal Practitioners in Nigeria
The fact of this case had been summarized above. The Petitioner’s case is that the Appellant fraudulently induced him into paying N40 Million for a property instead of N30 Million that was demanded by the vendor. When confronted, the Appellant admitted the wrongdoing and made an initial refund of N3 Million and issued a cheque for the repayment of outstanding N7 Million which he later countermanded.
The conduct and consequences of the above are matter of statutory provisions by virtue of Rules 1, 14
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and 15(3) of the Rules of Professional Ethics, 2007 and punishable under Section 12(1)(a) of the Legal Practitioners Act 2004 (as amended) under which the Appellant was investigated and found guilty by the 2nd Respondent (the LPDC).
By virtue of Rule 1 of the Rules of Professional Ethics, 2007, the general responsibility of a lawyer is to uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner. Clearly, the Appellant acted contrary to his oath as a legal practitioner when he misled the Petitioner to purchase the property at a price other than that which was fixed by the owner. Assuming the Appellant was ‘beclouded’ by a sense of professional duty of maximising the benefit or gains for his client, he had clearly breached this by refusal to pay-over the N10 Million balance demanded and collected in excess of the price fixed for the property. The LPDC was justified in its finding of fact that in the circumstances of this case, the Appellant owed a fiduciary duty to both parties in
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respect of the transaction. This has been breached.
The Appellant took a gamble, which I think might not have worked favourably in his favour. This is because the PW1’s evidence was overwhelmingly sufficient and convincing.
There is further corroboration by the fact that the Appellant had admitted the wrong-doing and actually paid back the sum of N3 Million and issued a post-dated cheque for the balance of N7 Million to the PW-1 (the Petitioner) which cheque was countermanded and dishonoured on the instruction of the Appellant. Amidst this ocean of evidence, the Appellant still decided to take a plunge into self-delusion by resting his case on that of the Respondents by refusal to call evidence in support of his defence.
It is my humble view that being fully conscious of the fact of his conduct in the case, the Appellant took a big risk by resting his case on the Respondents. This has an implication.
According to the EXECUTOR OF THE ESTATE OF GEN. SANNI ABACHA VS. EKE-SPIFF (Supra), the Appellant was asserting that:
“a) The Respondents have not made out any case at trial to warrant his response.
b) He admitted the facts of the case as presented
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by the Respondents; or
c) He has a complete defense in answer to the Plaintiffs (the Respondents).”
The Appellant’s self-deceit smartness is less than a half. Having conducted himself in a rather unprofessional manner, and having also admitted the misconduct by repaying part of the outstanding sums, a prudent Legal practitioner ought to do more by disabusing the minds of an observer as to his ‘saintly’ disposition in the transaction to negative the likely outcome or consequence of lacking in professional decency and probity. He has chosen to lace his bed with stones, pebbles and crumbs of iron and broken bottles; he surely deserves to sleep on the bed alone. This will send appropriate signals to potential violators of Rules of Professional Ethics, 2007 and other applicable provisions of the Legal Practitioners Act 2004.
It is my view in this considered judgment that having regard to the evidence led before the 2nd Respondent, I’m convinced beyond any shadow of doubt, that the LPDC was correct in coming to the conclusion that the Appellant was guilty of infamous conduct in discharging his professional duties. I’m also of the view that the 2nd
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Respondent was justified in its direction to the Registrar of the Supreme Court of Nigeria dated December 2, 2013 that the name of the Appellant be struck-off the Roll of Legal Practitioners in Nigeria.
We need a sharp depart from infamy in the legal profession. All Judges are first and foremost lawyers. Thus, the bench and the legal profession must continue in internal regulation and/or self-cleansing. This, in my view is to save the legal profession and invariably the entire structure with which justice is administered in this country. The justice mechanism essentially includes all legal practitioners, and by direct implications all those who practice as solicitors, transaction advisors or as in-house Counsel and law academics. They all belong to the category of ‘Legal Practitioners’. This is because their avoidable professional indiscretion, misconduct, imprudence or lack of probity in written agreements, transaction or advisory and other forms of professional engagements may, and have often formed basis of or cause of action in several suits and appeals.
In view of the foregoing, I resolve the sole issue formulated
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above in favour of the Respondents. I hold that this appeal lacks merit and fails in whole. The appeal is accordingly dismissed. The direction of the 2nd Respondent (the Legal Practitioners’ Disciplinary Committee (LPDC) of the Body of Benchers) dated December 2, 2013 is hereby affirmed.
There shall be no order as to cost.
SC.295/2015