Charles Okike V. The Legal Practitioners Disciplinary Committee (2005)
LAWGLOBAL HUB Lead Judgment Report
DAHIRU MUSDAPHER, JSC
This is an appeal against the “direction” or decision of the Legal Practitioners Disciplinary Committee of the Body of Benchers established under section 11(1) of the Legal Practitioners Act Cap.207 as amended, by Legal Practitioners [Amendment] Act No. 21 of 1994 and brought to this court in pursuance of section 12 (7) thereof. The “direction” was given by the Committee in its proceedings No BB/DCNB/016 of 3rd April, 2003 whereby the appellant Mr. Charles Okike, was to have his name struck off from the Roll of Legal Practitioners. The appellant was further ordered to refund to his client, through the petitioner, the sum of 123,000 United State Dollars. The money he misappropriated and refused to pay to his client. The matter started as the result of the petition written by one Alhaji Salisu Mohammed dated the 27th of September, 2000, addressed to the Chief Justice of Nigeria. The petitioner alleged that the appellant as a legal practitioner and representing a Japanese Company called KAIYOU SYSTEMS LTD misappropriated the sum of N14,500,000.00 which he received on behalf of his client. The petitioner claimed to be a donee of a power of attorney granted by the Japanese company aforesaid empowering him to collect the money. The Chief Justice of Nigeria forwarded the petition to the President of the Nigerian Bar Association for investigation. In his letter dated the 21st day of May, 2001, the President of the Nigerian Bar Association sent a copy of the petition to the appellant requesting him to “furnish us with your written response to the allegation.” The response was to be forwarded direct to the Nigerian Bar Association Disciplinary Committee, “Through its chairman, Chief Bandele Aiku SAN,” The appellant was given 21 days within which to react to the allegations made against him. On the 27th June, 2001, the appellant made his responses to the allegations direct to the Chairman of the Nigerian Bar Association Disciplinary Committee.
In pursuance of Rule 2A (2) and Rule 3 of Legal Practitioners Disciplinary Committee Rules L.N. 69 of 1965 as amended by section 117 of 1994, the Nigerian Bar Association Disciplinary Committee Communicated its decision to the Secretary of the Legal Practitioners Disciplinary Committee, which had been established under section 11 (1) of the Legal Practitioners Act, as amended, aforesaid.
The Nigerian Bar Association Disciplinary Committee after duly considering “all the available materials and felt satisfied that a prima facie case of misconduct” was established against the appellant wrote a letter addressed to the Secretary of the Legal Practitioners Disciplinary Committee dated 19/10/1991 enclosing the petition and all the relevant materials it considered relevant in its deliberations. The Chief Justice of Nigeria was also sent copy of the letter so that he might “consider the need to exercise his power of suspension of the legal practitioner under section 13(2) of Legal Practitioners Act ”.
In its letter of 2nd May, 2002, the Legal Practitioners Disciplinary Committee, under its powers pursuant to Section 11 (1) of the Legal Practitioners Act as amended, summoned the appellant to appear before its from the 18th – 20th days of June, 2002 when it would consider the petition laid against him. The Committee also enclosed a copy of the petition for the response of the appellant. The appellant on the 5th of June, 2002, addressed a letter to the Secretary of the Disciplinary Committee as follows: –
“RE: BB/DCNB/016 CHARLES OKIKE ESQ
I humbly acknowledge receipt of a notice dated the 2nd day of May which was received on the 17th May, 2002 inviting me to respond and defend myself against allegations contained in the petition of one ALHAJI SALISU IBRAHIM MOHAMMED, A copy of the petition dated 27th September 2000 and two of the petition’s supporting documents were also received by me.
I feel constrained to immediately point out only a few relevant facts as follows:-
That by a letter dated 2nd October, 2000, a copy of the said complaint was forwarded to the Nigerian Bar Association by the Chief Justice of Nigeria for investigation in accordance with relevant rules.
That by a letter dated 21st May, 2001, the President of the Nigerian Bar Association asked me to respond to the allegations in the said petition as part of their investigation activities. A copy of the said petition was enclosed together with 8 supporting documents in contrast to the same petition you annexed to your notice which has only two supporting documents,
That by a letter dated 27th June, 2001, I duly and effectively responded to the petition since your notice does not refer to exhibit the report of the Nigerian Bar Association investigation, nor the charges in which the NBA is of the opinion that a prima facie case has been made, I must humbly ask; at whose report, on whose authority and on what grounds this complaint is being listed for hearing from the 18th to 20th June, 2002, by the Legal Practitioners Disciplinary Committee of the Body of Benchers?
I find, the above anomalies even more disturbing and strange because in my response to the NBA investigation, I stated quite clearly that the Power of Attorney on which the said ALHAJI SALISU IBRAHIM MOHAM-MED based his petition is forged and that he does not have the permission or consent of my client, MR. KAIHARA of KAIYOU SYSTEMS INC to present this petition or continue to harass or intimidate me in his name.
In the circumstances, I would humbly ask these obvious and serious substantive and procedural anomalies and irregularities be investigated and cleared up as soon as possible. Thanks.
Charles Okike & Associates.
Charles C, Ikechi Okike”.
The Secretary to the committee, Mr. Maidama replied the appellant’s above letter on the 8th of June, 2002 and informed the appellant that the “appropriate place to raise” the issues contained in the appellant’s aforesaid letter “is before the committee itself on the dates mentioned”. “I would therefore advice you to appear before the committee on those dates so that you could be able to raise them.” The appellant was in all summoned to appear before the Disciplinary Committee, on seven different occasions to answer the complaints made against him, but the appellant failed to honour the summons. On each occasion, the appellant was invited to attend the sitting of the respondent’s committee, the appellant was duly informed and warned that his refusal to attend the respondent’s proceedings might result in the respondent proceeding to hear the petition against him in his absence as provided by Regulation 7 of the Legal Practitioners (Disciplinary Committee) Rules L.N. 69 of 1975, as amended by S.I No. of 1994.
The appellant habitually would also write to acknowledge the receipt of the hearing notice, but would continue to state that the “whole matter is fundamentally flawed substantively and procedurally”. The appellant would always question the competence of the Disciplinary Committee and also the bonafide of Alhaji Salisu Ibrahim Mohammed.
The matter came before the Disciplinary Committee for hearing of the petition on the 3rd of April, 2003 at the Court of Appeal premises Abuja. After satisfying itself that the appellant was served and that the appellant “acknowledged the receipt of the hearing Notice” and he wrote a letter in response to the Summons, the Committee admitted from the bar the appellant’s said letter dated 31/3/2003 as Exhibit “A” and the previous Hearing Notices as Exhibits B – B6 and also the appellant’s responses to the hearing Notices as Exhibits C to C6. In doing so, the committee invoked the provisions of the aforesaid Regulation 7 and proceeded with the hearing of the matter. At the hearing. Alhaji Salisu Ibrahim Mohammed was the only witness called. He testified and tendered Exhibit D – a copy of his petition referred to above; Exhibit E, the power of attorney granted him by Mr. Kaihara, Exhibit F a letter to Kano Branch of the NBA and appellant’s reply in response to the NBA Kano letter to Exhibit “G”. The witness concluded his testimony thus: –
The respondent (appellant herein) has since my appointment as Mr. Kaihara’s attorney paid to me N70,000.00. The N70,000.00 was paid to me in three instalments. Respondent gave my represen-tative to whom he paid directly a paper to sign for the amount paid. Mr. Kaihara wrote me a letter showing that I was appointed as attorney to collect money for him from his creditors (sic) (debtors) and withdrawing instructions previously given the respondent (letter received in Evidence as Exhibit “H”). The judgment debt was N14.5million, the amount so far sent to Mr. Kaihara is N51,000.00. United States Dollars was remitted to Mr. Kaihara. …. The amount due to be paid to Mr. Kaihara is l23,000.00, United States Dollars…………… The respondent personally approached me pleading that I should allow him more time to pay as he had properties including generators to sell but he failed to pay or neglected to pay”.
The Disciplinary Committee after considering the unchallenged evidence before it, both oral and documentary whereat the appellant admitted the allegation, decided that the allegation of infamous conduct in a professional respect had been proved against the appellant and gave a direction to wit-
“(a)Ordering the registrar to strike the appellant’s name off the roll; and
(b) Ordering the appellant to refund the sum of 123,000 United State Dollars to the complainant Petitioners”.
It is against this direction aforesaid that the appellant has now appealed to the Supreme Court under the provisions of Section 12 (7) of the Legal Practitioners Act as amended.
The Notice of appeal contains 10 grounds of appeal:-
The learned members of the Legal Practitioners Disciplinary Commit-tee erred in law when they failed to resolve or address the issue of the substantial and fundamental procedural irregularities raised by the applicant which affected their jurisdiction to hear the procee-dings.
The Appellant wrote several letters to the Respondent comp-laining of fundamental, procedural and substantive errors in the process by which the proceedings were initiated.
b.The right to question a jurisdictional defect cannot be defeated by the procedure adopted to do so.
c.The appellant was denied a fair hearing by the failure of the committee to resolve the issues of jurisdiction one way or the other.
The learned members of the Legal Practitioners Disciplinary Commi-ttee erred in law when they exercised jurisdiction in procee-dings where the complainant, ALHAJI SALISU MOHA-MMED, had no locus standi to seek the reliefs he was given.
The alleged Power of Attorney on which the complainant stated he was basing his allegations against the appellant was not authenticated or attested to in any way by a notary public or other necessary person.
Neither the respondent herein nor the NBA Disciplinary Committee adverted their minds to or investigated the appellant’s argument that the said Power of Attorney was forged.
The complainant, ALHAJI SALISU MOHAMMED, purpor-ted to bring the proceedings on behalf of a disclosed principal, KA1YOU SYSTEMS INC, but the respondent ordered the refund of the sum of USD 123,000 to the complainant and not KAIYOU SYSTEMS INC.
There was no evidence of any agreement to pay United States dollars to either the complainant or KaiYou Systems Inc in respect of an alleged judgment debt denomi-nated in naira.
The alleged Power of Attorney did not relate to the bringing of disciplinary proceedings against the appellant before the respondent.
The learned members of the Legal Practitioners Disciplinary Commi-ttee erred in law in exercising Jurisdiction to strike the name of the appellant from the roll of Legal Practitioners.
At no time were any formal charges drawn up and served on the appellant accusing him of being guilty of infamous conduct in any professional respect.
The Committee did not make any finding or adjudge the appellant to be guilty of infamous conduct in any professional respect before purporting to strike his name from the roll of Legal Practitioners.
At no time did any notice issued by the respondent and served on the Appellant disclose that the proceedings pending before them were between NBA vs. Charles Okike Esq.
At no time was the appellant informed that as a result of the proceedings before the respondent he may be liable to be punished under S.12(l)(c)(i) Legal Practitioners Act by having his name struck from the roll of Legal Practitioners.
The learned members of the Legal Practitioners Disciplinary Commi-ttee erred in law when they failed to satisfy themselves that the conditions precedent to the exercise of their jurisdiction were complied with and thus denied the Appellant a fair hearing.
There was no report or proper report of the NBA investigation of the allegation against the Appellant by the complainant, ALHAJI SALISU MOHAMMED, tend-ered before the respondent or served on the appellant.
There was no evidence of any decision by the NBA to present a complaint against the appellant to the respondent committee.
There was no evidence that the NBA conducted an investigation into the allegations against the appellant involving the tendering of documents and making of statements under Oath or the cross-examination of witnesses, or when, where, and by whom such investigation was conducted.
The appellant had complained continuously for several months about the substantial procedural irregularities.
No proper notice was served on the appellant in respect of the proceedings of 3/4/03.
The learned members of the Legal Practitioners Disciplinary Commit-tee erred in law when they purported to act on the oral allegation of the complainant of the existence of a judgment debt of N14.5 Million in favour of KAIYOU SYSTEMS INC, in violation of S.I 32(1) of the Evidence Act.
The provisions of the Evidence Act apply in proceedings before the Respondent Committee as they do in civil proceedings.
The complainant has no locus standi to tender documents or refer to matters involving KAIYOU SYSTEMS INC when the complaint was not brought in its name.
The initiation and conduction of proceedings before the Respon-dent Committee as presently established amounts and amoun-ted to a violation of S.36(3) of the 1999 Constitution of the Federal Republic of Nigeria and a denial of the Appellant’s rights to fair hearing in the determination of his civil rights and obligations.
(a) Rule 12 of the Legal Practitioners (Disciplinary Committee) Rules as amended directs that the Respondent Committee’s procee-dings should be held in private,
The proceedings of the Respondent Committee were in fact held in private.
The basis of the proceedings before the Respondent Committee was for the recovery of an alleged debt owed to KAIYOU SYSTEMS INC.
The learned members of the Legal Practitioners Disciplinary Commi-ttee erred in law in initiating proceedings based on the alleged findings of the NBA Disciplinary Committee that a prima facie case had been established against the appellant.
The NBA Disciplinary Committee is not a Court or Tribunal estab-lished by law or the Constitution,
In purporting to investigate the allegations against the appellant the NBA Disciplinary Committee did not act as a Court or Tribunal thus denying the appellant a fair hearing,
The NBA Disciplinary Committee has no power or authority to make a finding of a prima facie case against the appellant, since same is a judicial or quasi-judicial determination outside its powers to give.
There was no evidence that the NBA executive considered any report by the NBA Disciplinary Committee or was involved in submitting the case to the respondent.
The appellant was denied a fair hearing by the Legal Practitioners Disciplinary Committee which showed malice and bias both during and after the proceedings.
The alleged NBA Report was not sent by the respondent to the appellant for 10 months in spite of repeated demands.
The allegations of the appellant were not resolved or Addressed by the Respondent Committee.
The publication in various Newspapers of the Notice of its proceedings of October 21st and 22nd, after its direction of 3rd April, 2003 and in violation of Rule 12 of its own Rules is malicious and biased as it shows the respondent was the prosecutor rather than the NBA.
The Respondent Committee deliberately refused to serve the appellant with official notification of its Directions of 3rd April, 2003 until same had been announced on NTA Network News of 28th January, 2004 and given wide publicity in January and February 2004 (10 months later) through the publication of same in the Punch, Vanguard and THISDAY Newspapers of 5th, 6th and 10th February, 2004 respectively,
The appellant never wrote to the Respondent Committee saying that he would not attend their sitting,
There is no evidence that the complainant was ever present except on 3rd April, 2003.
The appellant was given only 7 days notice of the proceedings of 3rd April, 2003.
The learned members of the Legal Practitioners Disciplinary Committee erred in law in entertaining these proceedings against the appellant when the primary claim was for the recovery of an alleged debt.
The determination of whether the appellant is owing money involves a determination of his civil rights and obligations which in accordance with S. 36(1) & (3) of the 1999 Constitution must be entertained in a court of law or tribunal established by law and constituted in such a manner as to secure its independence and impartiality and whose procee-dings are held in public.
Neither the respondent nor the NBA Disciplinary Committee is such a Court or Tribunal contemplated by S36(1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria.
The stated purpose of the alleged Power of Attorney granted to the complainant, ALHAJI SALISU MOHAMMED, is for the recovery of monies allegedly owed to KAIYOU SYSTEMS INC by the Appellant and not for the purpose of disbarring the appellant.
The learned members of the Legal Practitioners Disciplinary Committee erred in law when they assumed jurisdiction to entertain proceedings in which the allegations against the appellant is that he misappropriated a client’s funds.
The complainant’s allegations amount to an allegation of a criminal offence by the appellant under the Penal Code law.
Neither the respondent nor the NBA Disciplinary Committee is a criminal court established for the trial of the offence of misappro-priation.
The appellant was not and had not been convicted in a court of law established by or pursuant to the Constitution of the offence of misappropriation.
In pursuance of the provisions of the Rules of this court, briefs of argument were filed and exchanged. At the hearing of the appeal, learned counsel for the parties relied on the submission canvassed in their respective written briefs of argument. In his brief for the appellant, the learned counsel identified, formulated and submitted two issues for the determination of the appeal. The issues are:-
“1. Whether the learned members of the Legal Practitioners Discip-linary Committee had jurisdiction to entertain the proceedings and give its directions of 3rd April 2003, especially in view of the absence of any formal charges against the appellant, the questionable locus standi of the complainant, ALHAJI SALISU MOHAMMED which led to violations of the Evidence Act and the failure to comply with other conditions precedent to the exercise of their jurisdiction.
Whether in view of the entire circumstances surrounding the proceedings before the Legal Practitioners Disciplinary Commi-ttee, the appellant can be said to have been denied a fair hearing and the Legal Practitioners Disci-plinary Committee said to have violated the appellant’s right under s. 33(1) and 930 of the Constitution of the Republic of Nigeria.”
The respondent’s counsel, in its brief, has formulated more or less the same issues.
The learned counsel for the appellant when arguing issue No. 1, attended the decision of the Disciplinary Committee on five points.
It is argued that under the Legal Practitioner Disciplinary Committee Rules as amended, there must be proper investigation by the Nigerian Bar Association see Rules 2A(2) and 3. And also section 11 2 (e) of the Legal Practitioners Act as amended. It is argued that since the NBA’s investigation is to ascertain whether a prima facie case is made out or not, the rules of natural justice must apply vide LPDC vs. FAWE-HINMI  2 NWLR (Pt. 7) 300 at 381. It is further submitted that after the appellant had responded in writing to the NBA’s Committee, he heard nothing from them and the appellant was not informed when or how a prima facie case was made out against him. The appellant was not given the opportunity to explain his own side of the story see GALBA vs. UNIMAID 1986 ALL NLR 149. at 229. It is alleged that the hearing before the Discip-linary Committee was conducted in breach of fair hearing. It is further submitted that the proceedings before the NBA disciplinary committee was also conducted in breach of the principle of fair hearing.
It is further submitted that there was a procedural lapse when the NBA Disciplinary Committee directly reported to the Respondent Committee instead of the NBA when it found a prima facie case made against the appellant. In the instant case, there was no input from the NBA Executive Committee that there was a prima facie case against the appellant. Learned counsel referred to LPDC vs. GANI FAWEHINMI supra. A.G OF BENDEL STATE vs. A.G. OF THE FEDERATION & 22 OTHERS 1981 ALL NLR 85.
It is also argued that by Rule 3 of the Legal Practitioners Disciplinary Committee Rules, the document to be forwarded to the Respondents Committee by the NBA must include “…….. a copy of the charge on which the NBA is of the opinion that a prima facie case is shown.” It is submitted that there can be no trial of a legal practitioner for professional misconduct unless charges are framed and served on him. See LPDC vs. FAWEHINMI supra at 339 see also MEDICAL AND DENTAL PRACTI-TIONERS DISCIPLINARY TRIBUNAL vs. OKONKWO  3 SCNJ 186, (2001) 4 SCM 78; where this court held that there should be a charge which discloses the essential elements of the offence. The failure of the appellant to attend to the proceedings before the respondent was partly informed by the appellant complaining that no charges had been framed or served on him. It is submitted that Rule 6 (2) of the aforesaid rules provides “…… or in the case of the legal practitioner against whom charges have been brought……….” It is argued that by not hearing the proceedings based on formal charges brought by the NBA, or ensuring that formal charges had been served on the appellant, the Respondent Committee had acted without jurisdiction since a condition precedent was not complied with.
It is submitted that by Rule 6(3) of the aforesaid Rules when the Appellant was served with the Hearing Notice dated 20th of March 2003, the appellant in his letter of 31st March, 2003 clearly stated he was not given 30 days Notice of the Hearing. It is submitted that there was no proper Notice of the hearing of the petition against the appellant.
Under this head, the appellant is doubting the genuiness of the Power of Attorney – granted to the petitioner, Alhaji Salisu Mohammed. In any event, it is further argued that the donee of Power of Attorney has no authority to sue in his own name but in the name of the donor see VULCAN GASES vs. GESELL-SCHAFY  5 SCNJ 55, (2001) 8 SCM 142 UNITED NIGERIA CO. LTD. Vs. NAHMAN AND OTHERS  9 NWLR (Pt 671)117 where it was confirmed that it was wrong for an agent to sue in his name but can only sue in the name of the principal. The learned counsel for the appellant submitted that Alhaji Salisu Mohammed had no locus to present the petition. The alleged power of attorney was not executed before a Notary Public or in any way authenticated vide section 118 of the Evidence Act.
The respondent’s counsel, on the other hand, argued the appellant’s first issue as his second issue. It is submitted that the appellant’s complaint on the preliminary investigation and report by the Committee of the Nigerian Bar Association is unfounded and is lacking in substance. It is submitted that the appellant was accorded fair hearing before the NBA’s Committee. It is submitted that the procedural standard by which the petition was brought before the NBA’s Committee is the same standard by which the NBA’s Committee secured the appellant’s response. It is submitted that hearing of parties to a dispute need not be oral, it could be by written document whether by way explanation and accusation so long as both sides are given the same mode of hearing. See WAEC vs. MBAMALU  3 NWLR (pt 230) 481, ADIGUN vs. A.G, OYO STATE  1 NWLR (Pt 53) 678. What is required to constitute a fair trial is that a fair and equal opportunity is given to the parties to correct or contradict any information upon which a decision might be reached. BABA vs. NCATC  5 NWLR (Pt 192) 388. BOARD OF EDUCATION vs. RICE  AC 179.
With respect to the complaint on the “charges”, it is submitted that a copy of the NBA Disciplinary Committee Report with all the relevant papers, containing the entirety of the allegations were forwarded to the appellant. This is the practice of the respondent and the appellant was given the opportunity to appear before the respondent and make any representation in his defence to the allegations. It is submitted that the Rules of the Legal Practitioners Disciplinary Committee do not envisage the drafting of a formal charge so long as the allegation constitutes sufficient particulars of breach of duty by a Legal Practitioner to his client in Rules 49 (a) and (b) of the Rules of Professional Conduct, which if proved would constitute an infamous conduct under section 12 of the Legal Practitioners Act as amended. See MDPTD vs. OKONKWO  7 NWLR (Pt 711) 206, IDOWU vs. LPBC  ALL NLR 128. It is again submitted that the appellant cannot complain as there was no breach of fair hearing and the appellant was well aware of the allegations against him.
On the issue of Power of Attorney and the locus standi of the Alhaji Salisu Mohammed, the learned counsel for the respondent firstly submits that under section 188 of the Evidence, there is the presumption that a Power of Attorney is properly executed and authenticated by a Notary Public. The appellant did not appear at the hearing to raise the complaint. It is now too late for him to do so. It is further submitted that there is uncontradicted evidence that the appellant in pursuance of the power of attorney had paid the sum of N70,000.00 to the said Alhaji Salisu Mohammed.
Now, it is, I think, a fair characterization of a legal practitioner’s responsibilities in this country, that he stands as a “shield” in defence of right and to ward off wrong. In a profession charged with such responsibilities, there must be exacted those qualities of truth speaking, of a high sense of honour, of the strictest observance of fiduciary responsibility see IN RE EDEWOR (1968) ALL NLR 226. It is by and large the profession itself through its appropriate argues and committees, as sifting agencies, that is to determine what infamous conduct will lead to the disbarment of a legal practitioners. See IN RE IDOWU  1 ALL NLR 126. Disbarment, designed to protect the public is a punishment imposed on the legal practitioner. It is accordingly entitled to procedural due process as enshrined in the Legal Practitioners Act, as amended, and the Legal Practitioners
(Disciplinary Committee) Rules, also as amended, and indeed the Constitution of the Federal Republic of Nigeria.
Now, by Rule 2A(1) a complaint by any person against a legal practitioner shall be forwarded in writing by the complainant or the person aggrieved to any of the listed persons. There is no doubt that Alhaji Salisu Mohammed duly put his complaint in writing to the Chief Justice of Nigeria and who endorsed the petition to the Chairman of the Nigerian Bar Association in accordance with the provisions of Rule 2 by virtue of which he “cause the complaint to be investigated”. The appellant’s contended that there was no investigation by the NBA’s Committee, but that cannot be correct because in its letter dated 19/10/2001, earlier referred to in this judgment, the NBA wrote to the Secretary of the respondent in compliance with the provisions of Rule 3 of the aforesaid rules that “…… The committee duly considered all the available materials and felt satisfied that a prima facie case of misconduct was shown …….”
There is no provision in the rules that the NBA must inform the appellant how it went about its investigation, so long as the appellant was given an opportunity to defend the accusations made against him. In any event, what is on appeal before this court is the decision of the respondent and not the decision of the NBA or its Committee. Whatever procedural lapses that occurred before the NBA or its Committee is not an issue that this court can competently adjudicate upon. The appellant had the ample opportunity to complain in the proceedings before the respondent, but he refused to do so. It is now too late for him to complain about the procedural due process before the NBA Committee. SUBVENIUNT LEGES, SUBVENIUNT JURA, SUCCVRRIT LEX, [The law assists those who are vigilant not those who sleep!]