Chief Andrew Oru V. Nigerian Bar Association & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Federal High Court, Lagos Division delivered by Okechukwu Okeke J. on the 30th of March, 2009. The 1st Applicant now Appellant in this appeal, on the 23rd of May, 2008 filed an application for the enforcement of his Fundamental Rights against the Respondents at the Court below seeking the following reliefs:-

1. A declaration that in the exercise of its functions in respect of the powers conferred on it by virtue of the provisions of the Legal Practitioners Disciplinary Committee Rules 2006 as concerns the professional conduct of its members, the 1st and/or 2nd Defendants/Respondents is/are bound to observe the rules of fair hearing as enshrined under S.36 of the 1999 Constitution of the Federal Republic of Nigeria, and that the non-observance of same in the circumstances of this case renders all its/their actions in relation thereto, illegal, unconstitutional, null and void and of no effect whatsoever, as it/they violate(s) the respective Applicants’ fundamental rights to fair hearing.
2. A declaration that having violated the respective applicants’ rights to fair hearing in the conduct of its/their proceedings in relation to the purported acts of professional misconduct of the Plaintiffs/Applicants as contained in the complaint brought against them by one Lanre Ipinmisho vide his letter dated 27th January 2005, all steps taken by the 1st and/or 2nd Defendants/Respondents in relation thereto are illegal, unconstitutional, null and void and are liable to be quashed forthwith.
3. A declaration that specifically, the entire proceedings conducted by the 1st Defendant/Respondent by way of investigating the complaint of professional misconduct forwarded by one Mr. Lanre Ipinmisho vide his letter dated 27th January 2005, but which was received by the 1st Defendant/Respondent on the 9th of March 2005, was fraught with cash-induced/politically induced malice, bias, unfair-hearing and witch hunting, and thus unconstitutional, illegal, null and void and liable to be brought before this Honourable Court for the purpose of getting same quashed forthwith.
4. A declaration that the finding of a prima-facie case of professional misconduct against the Plaintiff/Applicants by the 1st Defendant/Respondent as contained in its letter dated 11th July, 2005 forwarded to the 2nd Defendant/Respondent was in bad faith and arrived at in violation of the respective rights of the Plaintiffs/Applicants to fair hearing, and thus liable to be quashed forthwith and also thus cannot form the basis for any action(s)/proceedings by the 2nd Defendant/Respondent.
5. A declaration that in exercise of its functions as related to the rules of professional conduct in the legal profession, the current law that gives the 2nd Defendant/Respondent jurisdiction to commence/preside over proceedings thereof, is the Legal Practitioners Act, 2004, Laws of the Federal Republic of Nigeria, L.11 2004 as approved/given effect by the Revised Edition (Laws of the Federation of Nigeria) Act 2007, and which provides that only the Attorney General of the Federation (or only the Solicitor General, if so delegated by him/her) shall be the Chairman thereof.
6. An order of Court directing the 1st Defendant, to, within 7 days or as the Honourable Court may otherwise direct, bring into court, for the purpose of same being quashed; its disciplinary committee’s proceedings dated 24th June, 2005.
7. A declaration that all proceedings of the 2nd Defendant/Respondent till date in relation to the purported findings of the 1st Respondent as contained in the 1st Defendant/Respondents letter dated 11th July 2005 have no legal basis whatsoever and are liable to be quashed forthwith, as the 2nd Defendant/Respondent was illegally/unlawfully/improperly constituted, and/or also for proceeding on the basis of the unconstitutional findings of the 1st Defendant/Respondent, and further, for conducting its proceedings in violation of the Applicants rights to fair hearing respectively.
8. An order of declaration of court that the Defendants’ action(s) in totality in relation to the subject matter of this suit are inconsistent with the provisions of S.36(1) and 39(1) of the 1999 Constitution of the Federal Republic of Nigeria and therefore, illegal, null and void and of no consequence whatsoever.
9. An order of court of Certiorari quashing/setting aside all the proceedings/actions of the Defendants/Respondents as related to the complaints of professional misconduct against the Plaintiff/Applicants especially as contained in (but not limited to) the letter/attachments of the 1st Defendant/Respondent dated 11th July 2005 and all proceedings related to/the decision of the 2nd Defendant/Respondent as contained in its DIRECTION dated/delivered on the 21st April, 2008, all of which are attached to the affidavit in support of this Motion on Notice.
10. An order of court granting leave to the Applicants to serve the orders of this Honourable Court on all the persons/offices, notice to which the DIRECTION of the 2nd Defendant/Respondent dated 21st April, 2008 was given therein.”

A preliminary objection was raised by the Defendants/Respondents on two grounds, viz; 1. The suit is an abuse of court process and 2. The court lacks jurisdiction to determine this suit. In its ruling, the Federal High Court held that the suit is not an abuse of court process as the instant case was filed first but declined jurisdiction to hear the matter on the ground that the subject matter which is legal practice and discipline of legal practitioners do not fall within the exclusive jurisdiction of the Federal High Court as provided in Sec. 251 of the 1999 Constitution of the Federal Republic of Nigeria. However, the court acknowledged the fact that the claim is on denial of fair hearing. The Federal High Court expressed the view that the only option open to the Applicants is to appeal to the Supreme Court.Courts & Judiciary

The Appellant was dissatisfied with the decision of the Federal High Court and hence this Appeal. It is important to note that whereas there were 2 Applicants at the Federal High Court, only the 1st Applicant filed a Notice of Appeal to this Court who is therefore referred to as the Appellant in this Appeal. Strictly speaking, the 2nd Applicant whose name appeared as an Appellant in this Appeal did not file a Notice of Appeal and therefore his name should appear as a Respondent in this Appeal and shall henceforth be referred to as the 3rd Respondent.

The Appellant’s Notice of Appeal was filed on 17th of April, 2009 consisting of two grounds of appeal. The appeal was heard and judgment reserved on the following briefs: the Appellant’s brief of argument filed on 12th of August, 2009; the 1st Respondent’s brief of argument filed on 12th of March, 2012 but deemed properly filed on 25th of February, 2012: and the 2nd Respondent’s further amended brief filed on 24th of October, 2013 but deemed properly filed on 20th of March, 2014. No brief of argument was filed by the 3rd Respondent. Also no reply brief was filed by the Appellant.

From these grounds of appeal, the appellant has distilled the following two (2) issues for determination of this Court viz:-

“1. Whether the Federal High Court was right in finding that it had no jurisdiction to entertain the subject matter of the suit.

2. Whether the Federal High Court was right when it held that the issues in the substantive case that is want of jurisdiction and lack fair hearing ought to be the subject of appeal to the Supreme Court when the extant law applicable, Legal Practitioners Act 2004 does not provide an appeal direct to the Supreme Court and the Supreme Court has no original Jurisdiction to entertain claims for enforcement of fundamental human rights and fair hearing.”

The 1st Respondent on his part formulated two (2) issues for determination in this appeal. They are as follows:-

“1. Whether the Lower Court has jurisdiction to entertain the Appellant’s Suit?

2. Whether the learned judge was right to hold that the Appellant could not challenge the composition of the 2nd Respondent at the Federal High Court; but by way of an appeal to the Supreme Court”

The 2nd Respondent on his part also formulated two (2) issues for determination in this appeal. They are as follows:-

“1. That based on the proceedings and decision of the Legal Practitioners Disciplinary Committee on its disciplinary jurisdiction within the legal profession, was the Federal High Court the appropriate forum to seek redress against the Directions of the Legal Practitioners Disciplinary Committee.

2. Whether the 2nd Respondent based on its constitution predicated on the Legal Practitioners Act as amended by Decree 21 of 1994, was the 2nd Respondent properly constituted in law, when it tried the Appellants, in view of the omission to incorporate the above amendments by Legal Practitioners Act (Decree 21, 1994) in the Revised edition of the Laws of the Federation of Nigeria, 2004.”

It is clear from the issues as formulated that issue No. 1 and issue No. 2 raised by all parties are inter-related and shall be dealt with together. However, before discussing the issues formulated by the parties, I will like to point out that, the 1st Respondent’s Counsel raised an objection that the Appellant has failed to indicate how the issues he submitted were distilled from the Grounds of Appeal. He cited the case of Zabusky vs. Israeli Aircraft Industries (2008) 2 NWLR (Pt.1070) page 109, where the Grounds were deemed abandoned as the Appellants failed to relate their issues to the Grounds of Appeal. He then urged the Court to hold same.

Issue 1

The Appellant’s Counsel, M.A. Agbamuche, submitted that based on the provision of Sec 46 of the 1999 Constitution, a High Court of a State [whether Federal or State] has the original jurisdiction to entertain any matter arising from the breach of Fundamental Right as guaranteed under Chapter 4 of the 1999 Constitution. Based on the above provision, it was right for the Appellant whose right to fair hearing (guaranteed under chapter 4) was breached by the 1st and 2nd Respondents at the investigative and trial stages to have instituted a Fundamental Right action at the Federal High Court. Also, Counsel submitted that in order to determine jurisdiction, the Court is to look at the claim or relief sought by the applicant. He relied on the case of Tukur vs. Governor of Gongola State (1989) 4 NWLR 515. In this case, looking at the facts and reliefs, it is clear that the main claim of the Appellant is the enforcement of his Fundamental Right to fair hearing. The Trial judge pointed out in his judgment at pages 359 – 375, particularly at page 373, but however went further to decline jurisdiction on the ground that the regulation of the practice of the legal profession and discipline of legal practitioners are not within the subject matter jurisdiction of the Federal High Court.