Eke Umazi Ndukwe V. The Legal Practitioners Disciplinary Committee & Anor (2007) LLJR-SC

Eke Umazi Ndukwe V. The Legal Practitioners Disciplinary Committee & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the decision of the Legal Practitioners Disciplinary Committee on petition No. BB/DCNB/021 delivered on the 7th day of October, 2002 pursuant to the provisions of section 12(7) of the Legal Practitioners Act, Cap. 207, Laws of the Federation, 1990 as amended by the Legal Practitioners (Amendment) Decree No.21 of 1994.

The appellant is a legal practitioner with a law firm in Abia State where he carries out his law practice. In the course of that practice, his professional services were retained by the 2nd Respondent, Mrs. Nwanna Awa Agwu, a business woman based in the Cameroon, in respect of the execution of judgment obtained in Cameroon for CFA 20,000,000.00 against three fellow Nigerians namely Ebi Erne, Ume Ukpai and Uka Mbila Philip. An agreement evidencing the transaction was entered into by the appellant and the 2nd respondent.

Appellant took steps to execute the foreign judgment at the High Court of Abia State, Holden at Ohafia in the process of which he recovered only N25,000.00 out of the total judgment debt. The appellant discontinued the proceedings against the 3rd defendant Uka Mbila Philip in circumstances which the 2nd respondent considered controversial. The sum of N25,000.00 recovered was from fi-fa and sale of the movable property of the judgment debtors.

The 2nd respondent eventually lost confidence in the appellant’s conduct of the case and consequently debriefed him but the appellant refused and or neglected to pay the 2nd respondent the N25,000.00 recovered from the sale of movable assets of the said judgment debtors or any part thereof, in spite of repeated demands. At the end, the 2nd respondent petitioned the office of the Chief. Justice of Nigeria which petition was forwarded to the Nigeria Bar Association for investigation at the end of which the said Bar filed a complaint against the appellant with the 1st respondent on allegations of professional misconduct. The complaint, as reproduced by the appellant in the appellant’s Amended Brief of Argument deemed filed by this court on 16/11/06 at page 6 thereof and relevant to the proceedings is inter alia, that:-

” …. In his capacity as a Legal Practitioner for the Petitioner he recovered the sum of N25. 000. 00 in part settlement of judgment debt but refused to pay it over to the petitioner.” .

At the conclusion of the hearing by the 1st respondent a decision was handed down on the 7th day of October 2002 in which the 1st respondent found the appellant guilty of infamous conduct in a professional respect pursuant to the provisions of section 11(a) of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990 and suspended the appellant from the Bar with a direction that appellant should not engage in practice as a legal practitioner for a period of one year effective from the 7th day of October, 2002. Appellant is dissatisfied with that decision and has consequently appealed against same to this court.

In the appellant’s Amended Brief of Argument settled by learned counsel for the appellant, UBONG ESOP AKPAN, Esq. and deemed filed on 16/11/06 which was adopted in argument of the appeal, the following four issues have been identified for the determination of the appeal:

“(1) whether the first complaint against the appellant before the LPDC amounted to a crime (Ground 4).

(2) Whether the LPDC proceedings were initiated by due process of law (Ground 3)

(3) Whether the LPDC was in the circumstances of this case properly constituted when it made its finding of guilt against the appellant (Ground 1 and 2)

(4) Whether the actual decision of 7th October 2002 was lawful, credible and sustainable. (Grounds 5,6 and 7).”

On the other hand, learned counsel for the 1st respondent, DELE OYE Esq. in the 1st respondent’s brief of argument deemed filed on 27/4/06 identified two issues for determination. These are as follows:-

“(a) whether the decision of this court in M.D.P.D.T v. Okonkwo (2001) 7 NWLR (Pt.711) 206 is applicable in the circumstances of this case, even though there was an allegation of misconduct (against the appellant) which would appear to have criminal implications.

(b) Whether in the circumstances of this case there had been a breach of the appellant’s right to a fair trial capable of vitiating the hearing and determination reached on the allegation of professional misconduct raised against the appellant herein.”

Looking at the 2nd respondent’s Amended Brief of Argument deemed filed on 27/4/06 settled by N.I. QUAKERS Esq. of counsel the following three issues have been identified for determination.

“i. Whether the finding of the LPDC on the 2nd respondent’s petition amounted to a finding of guilt for the offence of stealing

ii. Whether there is any feature in the proceedings before the LPDC, especially the absence of a formal charge and the composition of the LPDC on the day it delivered its ruling that amounted to a denial of fair hearing to the appellant to invalidate the decision of the LPDC finding the appellant guilty of infamous conduct in a professional respect

iii. Whether the decision being appealed is supported by the weight of evidence before the LPDC”

In arguing appellant’s issue No.1 learned counsel for the appellant O.E. AKPAN Esq. referred the court to pages 2, 23, and 26 of the record where the first complaint against the appellant is stated and submitted that three elements appear from the complaint and that these are:

“1st, that E.U. Ndukwe acted as Legal Practitioner to the petitioner.

2nd, that E.U. Ndukwe, in that capacity recovered and held N25,000 on behalf of the petitioner;

3rd, that E.U. Ndukwe refused to pay the N25,000 over to the petitioner,” and that they allege that the appellant came into possession of N25,000 with the initial consent of the petitioner, but that he thereafter dealt with that sum:

(a) in a manner inconsistent with the petitioner’s title to it, and

(b) in a manner aimed at depriving the petitioner permanently of the use of her money by refusing to pay it over; that the first complaint against the appellant therefore alleges the crime of stealing by conversion under sections 383 and 390 of the Criminal Code, Oshinye v.C.O.P (1960) 5 FSC 105; (1960) SCNLR 216; Adewusi v. Queen (1963) 1 All NLR 316 at 319; (1963) 2 SCNLR 245; Sagoe v. Queen (1963) 1 All NLR 290 at 294 295; (1963) 2 SCNLR 210; R. v. Orizu (1954) 14 WACA 455; R v. Williams (1953) 1 All ER 1068; R. v. Cockburn (1968) 1 All ER 466

Referring to the case of Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 7 NWLR (Pt.711) 206 at 237-238 learned counsel submitted that if the test stated therein is applied to the facts of this case the facts will not support a charge in a court of law for which appellant would have been found guilty under section 383(1)(2)(a), (b) and (f) and section 390(c) or 390(9) of the Criminal Code; that the 1st respondent had no jurisdiction to try the 1st complaint since that complaint charged the appellant with the criminal offence of stealing by conversion covered by section 383 and 390 of the Criminal Code and relied on Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550. On his part, learned counsel for the 1st respondent submitted that the decision of this court in M.D.P.D.T v. Okonkwo (Supra) and Similar decisions which compel the trial of criminal allegation by a court does not apply in the circumstances of this case.

Learned counsel referred to the testimony of the appellant on record and stated that appellant admitted still having the money he collected on behalf of the 2nd respondent in his possession and submitted that having clearly admitted the unjustified retention of client’s funds, appellant cannot be heard to contend that he ought to have been tried before a court of competent jurisdiction before facing the 1st respondent; that where there is an admission of the particulars of a criminal allegation the matter need not be referred first to a court for trial, relying on Dongtoe v. C.S.C. Plateau State & Ors. (2001) 9 NWLR (Pt.717) 132 at 159 and that where the allegation is substantially of a professional misconduct in character it need not be referred to a court of law first, relying on Alalade v. Accountants Disciplinary Tribunal of ICAN (1975) All NLR 138; Okike v. LPDC (No.2) (2005) 7 SC. (Pt.111) 75 at 96; (2005) 15 NWLR (Pt.949) 471; sections 10( 1)(b) and 11 (1) of the Legal Practitioners Act, Cap. 207 Laws of the Federation, 1990.

On his part, learned counsel for the 2nd respondent in the 2nd respondent’s Amended brief deemed filed on 27/4/06 and adopted in argument of the appeal, submitted that the submission of counsel for the appellant on this issue is misconceived and that the cases of Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) All NLR 306; Garba v. University of Maiduguri, (1986) 1 NWLR (Pt. 18) 550 and M.D.P.D.T v. Okonkwo (2001) 7 NWLR (Pt.711) 206 at 237 are inapplicable to the facts and circumstances of this case in that the complaint of the 2nd respondent did not suggest an allegation of crime neither did the petition of the 2nd respondent suggest the commission of a crime by the appellant. Learned counsel referred to the letter under the hand of the Chairman of the Committee at page 2 of the record and stated that it contains only allegation of misconduct; that there is a difference between a sanction for withholding of money recovered by a legal practitioner for a client and the offence of stealing and that infamous conduct in a professional respect is viewed from the norms of the legal profession; that since appellant came upon the money in question lawfully and was never alleged to have spent it at his will or misappropriated same, his liability for infamous conduct was definitely not based on allegation of commission of crime of stealing and conversion under S. 390 of the Criminal Code as argued by learned counsel for the appellant. Arguing further, learned counsel submitted that the submission by appellant at page 42 of the brief as to whether (a) the petitioner demanded for her money to be returned

(b) the appellant refused to accede to a demand for return of the money” as well as the answers supplied therein removed the case from stealing by conversion; that the case of MDPDT v. Okonkwo (supra) at 235 cited and relied upon by counsel for the appellant is distinguishable from the facts of this case in that the court held that where infamous conduct cannot be established without proving facts that would amount to an offence covered by the Criminal Code, a disciplinary tribunal should yield to the criminal courts established for the trial of such offence and that the Okonkwo’s case eventually decided that the offence with which Dr. Okonkwo was charged did not come under the purview of the criminal code.

The simple question that needs an answer in the issue under consideration is whether the complaint against the appellant amounts to an allegation of the commission of a crime of stealing by conversion under the criminal code as contended by learned counsel for the appellant. The complaint is simply that the appellant “…. While acting as legal practitioner for the petitioner recovered the sum of N25, 000 in part settlement of judgment debt but refused to pay it over to the petitioner … “. Learned counsel for the appellant has referred the court to sections 383(1)(2)(a), (b) and (f), 383(3) and 390 of the Criminal Code as making provisions grounding the complaint of stealing by conversion thereby rendering the complaint against the appellant criminal in nature and deny the 1st respondent, upon decided authorities, of the jurisdiction to entertain the same without a competent court first determining the criminal aspect of the complaint. The question then is what do the said sections of the criminal code provide

Section 383(1)

“A person ‘who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.

(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents:-

(a) an intent permanently to deprive the owner of the thing of it;

(b) an intent permanently to deprive any person who has any special property in the thing of such property;

(f) in the case of money; an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owned:

(3)The taking or conversion may be fraudulent although it is effected without secrecy or attempt at …. ”

From the above provisions, it is very clear that what is prescribed is the act of dealing with goods or property which lawfully comes into the possession of the person in a manner inconsistent with the right of the true owner provided that it is also established that there is an intention on the part of the defendant or accused in so doing to deny the owner’s right or to assert a right which is inconsistent with that of the owner. Thus the conversion must be to the use of the person converting or to the use of any other person with intent to permanently deprive the owner of the goods, and in the case of money there must exist the intent to use it at the will of the person who converts it, notwithstanding the fact that he intends to repay same to the owner on a later date. In the instant case, the facts and circumstances do not even suggest that appellant intended to use the money recovered on behalf of the 2nd respondent neither has it been alleged that appellant spent the money so recovered nor withheld the money with the intention of spending same.

In fact appellant contends that the 2nd respondent never demanded for the money in his possession. The question is whether appellant; a legal practitioner can be said to have ever entertained the slightest thought of being accused of stealing by conversion when he maintained throughout that the 2nd respondent never demanded for the money in his possession. I hold the view that the complaint against the appellant speaks for itself and it is simply that appellant was being accused of infamous conduct in a professional respect and not of the commission of any crime let alone the offence of stealing by conversion. It should also be noted that throughout the trial appellant never raised an objection to the complaint being of a criminal nature or plead to the jurisdiction of the 1st respondent to hear his matter.

In any event, what was the reaction of the appellant to the complaint of the 2nd respondent It is very clear from the record that appellant admitted receiving on behalf of the 2nd respondent by way of part payment of execution of judgment the sum of N25,000.00 which he failed to pay over to the 2nd respondent. Now, granted that I am wrong in holding that the complaint against the appellant does not charge him with the commission of the offence of stealing by conversion, which I very much doubt, can it still be said that the matter ought first to have been referred to and settled by a court of competent jurisdiction before disciplinary proceedings can be commenced against the appellant The relevant law is as settled by this court in the case of Dongtoe v. C.S.C. Plateau State (2001) 9 NWLR (Pt.717) 132 at 159 per KARIBI-WHYTE, JSC, inter alia as follows:-

“The contention of the appellants is that even on the facts respondents should have waited for the criminal prosecution of the appellant before taking any disciplinary action arising from the criminal offences alleged against him. The decisions of F.C.S. C. v. Laoye (supra); Garba v. University of Maiduguri (supra); UNTHMB v. Nnoli (1994) 8 NWLR (Pt.363) 376 were cited and relied upon. These are decisions where the allegations of the commission of criminal offences have been denied and disputed. In such cases the burden rests on the accuser to prove the commission of the alleged criminal offences beyond reasonable doubt. This burden can only be discharged by a court established by law and constitutionally vested with powers to exercise criminal jurisdiction. The decisions have not considered and have not decided the situation where the administrative body has proceeded to exercise its jurisdiction to impose sanctions where the person accused has admitted the commission of criminal offences.

It cannot be disputed that where there is an admission of the commission of the criminal offences alleged the question of establishing the burden on the accuser to establish the commission of the offence does not arise. Accordingly, the question of violating the rights of the accused is not an issue. It seems to me preposterous to suggest that the administrative body should stay the exercise of its disciplinary jurisdiction over a person who had admitted the commission of the criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before disciplinary proceedings should be taken. I do not think the provision of the law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrongdoings. It is established law that after a plea of guilty by the accused before the court exercising jurisdiction in respect of criminal offences, the court must formally proceed to conviction without calling upon the accuser to prove the commission of the offence by establishing the burden of proof required by law See S.218 of the Criminal Procedure Act. See also R v.Wilson (1959) SCNLR 462; (1959) 4 FSC 175. This is because the admission of guilt on the part of the accused had satisfied the required burden of proof.

In the instant case there is nothing precluding the respondents from resorting to the relevant necessary administrative machinery and of imposing the appropriate applicable sanctions after the admission of the appellant of the commission of the offences of conspiracy and theft alleged against him had been established. “. Emphasis Supplied.

The above decision of this court clearly establishes the principle that where a charge or complaint against a person before an administrative tribunal or body doubles as a crime under the criminal code and the person accused has admitted committing the offence or offences the administrative tribunal or body has the jurisdiction to proceed to sanction the erring officer without first referring the matter for trial and determination before a court of competent jurisdiction because the admission of guilt discharges the burden of proof placed by law on the accuser. This clearly is an exception to the general rule that where an allegation against a person before an administrative tribunal is also an offence under the criminal code, the administrative tribunal cannot hear the complaint except the criminal aspect of same has been heard and determined by a court of competent jurisdiction as decided by this court in a number of cases including Garba v. University of Maiduguri supra, e.t.c., e.t.c. That apart, by the provisions of section 10 of the Legal Practitioners Act, the 1st respondent was established to exercise and does exercise disciplinary jurisdiction over members of the legal profession. The 1st respondent has no jurisdiction to try criminal cases neither has it ever pretended to have such jurisdiction by even attempting to exercise any. Therefore in whatever angle one looks at the issue under consideration, it must be resolved against the appellant and I hereby order accordingly.

On issue No.2, learned counsel for the appellant referred the court to the Legal Practitioners (Disciplinary Committee) Rules, Legal Notice No.69 of 1965 as Amended by Statutory Instrument No.17 of 1994 paragraph 4 thereof and submitted that the proceedings of the 1st respondent in the instant case ought to have been originated by a charge formulating the offences charged and notice of which ought to have been served on the appellant before the trial, but that the instant proceeding was not so initiated and therefore not in accordance with due process, learned counsel further submitted; that the provisions of paragraph 4 of S.1 No.17 of 1994 should be interpreted as imperative particularly as the procedural provisions is for the benefit of the person accused of an offence, relying on the Secretary of State for Defence v. Warn (1968) 3 WLR 609 at 614; Okegbu v. State (1979) 11 SC.1 at 51-52; that failure by the 1st respondent to give a charge to the appellant with sufficient information of the offence for which he was to be tried offends appellant’s right as enshrined in section 36(a) of the 1999 constitution. Learned counsel then stated that “The charge may not conform strictly with the form prescribed under the Criminal Procedure Law, but it must be a charge framed in such a way that it discloses to the person to be tried ,full details of the essential elements of the offences which he is to defend himself against. For the main purpose of a charge is to give the person accused of committing an offence notice of the case against him. See Faro v. IGP (1964) 1 All NLR 6 at 8-78”

Learned counsel further submitted that in the following cases, formal charges were framed:-

LPDC v. Fawehinmi (1985) 2 NWLR (Pt.7) 300; Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306; Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 7 NWLR (Pt.711) 206 and that failure by the 1st respondent to present the appellant with a formal charge before the trial was a fundamental breach of the appellant’s right to fair hearing particularly as he was found guilty of an offence which was not contained in a charge brought to his notice and the essential ingredients of which were never disclosed.

On his part, learned counsel for the 1st respondent submitted that as a domestic tribunal, the 1st respondent is structured with some form of latitude and as such by virtue of Rule 9 of the Legal Practitioners (Disciplinary Committee) Rules, Cap. 207, Laws of the Federation, 1990, the 1st respondent has the capacity to determine its procedure subject to the caution that such procedure meets the demands of natural justice. Learned counsel then submitted that appellant had adequate information, knowledge and particulars of the charge raised against him in the proceedings in question. Referring to page 22 of the record, counsel stated that it reveals the allegations made by the Nigerian Bar Association against the appellant at the commencement of the proceedings and the appellant duly respondent by denying the allegations; that appellant heard and understood the allegation against him and proceeded with the trial and cannot now be heard to complain that a formal charge was not brought against him. Citing and relying on the case of Okike v. LPDC (No.2) supra learned counsel submitted that the word “charge” should be construed to mean a process by which all the essential elements of an allegation are brought to the notice of the respondent. Counsel referred the court to the decision on similar facts in the case of Okike v. LPDC (No.2) supra at page 93, 113 and 116 thereof and submitted that the decision of this court in LPDC v. Fawehinmi supra and Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo supra are inapplicable to the facts of this case.

On his part, learned counsel for the 2nd respondent submitted that an allegation of denial of the right to fair hearing must not be made omnibus but on a firma terra and that from the facts, appellant was given adequate time and ample opportunity to defend himself.

Referring to page 10 of the appellants brief, learned counsel stated that appellant therein admitted that LPDC took evidence from both parties and adjourned proceedings to 31st July, 2002 for judgment, that appellant does not deny that the petition containing certain allegations was brought to his attention neither has he claimed not to have understood the allegations therein; that appellant duly responded to the allegations. Referring to section 36(6) of the 1999 Constitution, learned counsel submitted that appellant not having been charged with a criminal offence cannot properly take refuge under the said section and that all formalities associated with formal criminal trials do not apply to quasi-judicial proceedings before Disciplinary Tribunals such as the 1st respondent. On the other hand, learned counsel submitted that section 36(6) of the 1999 Constitution does not prescribe a format through which an accused person should be informed promptly and in detail of the nature of his offence and that the 1st respondent does not apply the provisions of the Criminal Procedure Act or Criminal Code and cannot be expected to draft a formal charge after an accused had been promptly informed in the language he understands of the nature and details of the allegations against him; that no where has this court held that a denial of fair hearing would occur where a formal charge is not drafted in a proceeding before the 1st respondent and urged the court to resolve the issue against the appellant.

Section 36(6)(a) of the 1999 Constitution provides thus:-

“Every person who is charged with a criminal offence shall be entitled to – be informed promptly in the language that he understands and in detail of the nature of the offence. ”

On the other hand, paragraph 4 of the Statutory Instrument No.17 of 1994 provides thus:

“4. References of case to Tribunal by Panel

In every case where in pursuance of section 10(1) of the Act the Disciplinary Committee is of the opinion that a prima facie case is shown against a Legal Practitioner; the Nigerian Bar Association shall forward a report of such a case to the secretary together with all the documents considered by the Nigerian Bar Association. and a copy of the charges on which the Nigerian Bar Association is of the opinion that a prima facie case is shown. ”

It is not disputed that the 1st respondent is not a court of law exercising jurisdiction in criminal matters under the criminal code and applying the provisions of the Criminal Procedure Act. It is conceded by both parties that the 1st respondent is an Administrative Tribunal or body exercising quasi-judicial functions or jurisdiction.

I agree with the learned counsel for the 1st respondent that as an administrative body or tribunal, the 1st respondent possesses the capacity to determine its procedure by virtue of Rule 9 of the Legal Practitioners (Disciplinary Committee) Rules Cap. 207, Laws of the Federation, 1990 and that the said “capacity is restrained only by the caution that such procedure meets the demands of natural justice and in accordance with the Evidence Act.”

It is principally in that light that one can properly appreciate the provisions of section 36(6)(a) of the 1999 Constitution which is designed to apply not only to formal courts exercising criminal jurisdiction but also to police officers effecting arrest of a suspect, administrative tribunal or bodies or generally speaking judicial or quasi judicial bodies. In fact the Current trend is to apply the principles of fair hearing or natural justice to purely administrative bodies which are now expected to have the duty to act fairly in the exercise of their duties as such bodies particularly where their decisions affect the rights and obligations of people. When viewed in that light it becomes very clear, and I hereby hold that the word “charged” as contained in the said section 36(6)(a) of the 1999 Constitution is not limited to a formal charge as recognized in the Criminal Code and the Criminal Procedure Act and applied by courts of competent jurisdiction but extends to complaint or information as to the offence with which a person is accused delivered to the person so accused or charged in a language that he understands with sufficient details of the alleged offence. The information may not necessarily be in writing as when a police officer, in the course of his duties, arrests a person for an offence. He is duty bound to inform him of the “charge” for which he stands arrested in a language that he understands and the detail of the nature of the offence. You may call it a caution if you wish. It is usually on that basis that the suspect is cautioned before he volunteers a statement in answer to the “charge” or allegations against him. What later takes place in the court of law where a formal charge is drafted, filed and a copy served on the accused to which he formally pleads either guilty, or not guilty is a formality required by the specific provisions of the Criminal Procedure Act, which in this case does not apply to the 1st respondent.

At page 23 of the record, the Nigerian Bar Association laid out the allegation against the appellant before the 1st respondent as follows:-

“The complaint against the respondent, E. Ndukwe, Esq. is that in his capacity as legal practitioner for the petitioner he recovered the sum of N25, 000. 00 in part settlement of judgment debt but refused to pay it over to the petitioner. The respondent was alleged while acting as legal practitioner for the petitioner to have compromised the case of his client in breach of his instruction”

At the said page 23, appellant responded to the charge thus:-

“I deny all the allegations. ”

It is very clear from the record that appellant never protested to the mode of charging him before the 1st respondent neither has he complained that he did not understand the charges against him which, from the passage quoted above, are two;-

(a) that he, as legal practitioner representing the petitioner recovered N25,000.00 as part payment of judgment debt but refused to pay it over to the petitioner, and,

(b) compromising the case of his client;

Neither did he object to the hearing of the charges against him without a formal charge or charges being filed. Appellant rather went ahead and testified before the 1st respondent and participated in the trial fully but turns round to complain about the absence of a formal charge before the 1st respondent. I do not think that he should be allowed to do so, granted, without conceding, that a formal charge was needed to be drafted and filed in the matter. It should also be noted that prior to the proceedings before the 1st respondent, a copy of the petition of the 2nd respondent was duly served on the appellant who had even had to appear before the Hon. Attorney-General of Abia State on the same petition of the 2nd respondent, so he knew all along the complaints against him by the 2nd respondent. He does not say that what the Nigerian Bar Association charged him with before the 1st respondent is different from the complaint of the 2nd respondent neither has he complained that the 1st respondent found him guilty of a different offence from what he was petitioned against.

In any event, this court, on similar relevant facts, decided in Okike v. L.PD.C. (NO.2) supra at pages 93,113 and 116 as follows:”

In my view, the word “charges” used under the rule does not mean and cannot mean formal charges in a criminal trial before a criminal court ….. Therefore what needs to be known to the legal practitioner concerned is the substance of’ the allegations against him before the proceedings started: … The precise nature of the allegations against the appellant were communicated to the appellant, he was well aware of the complaints against him. The appellant had fair notice of the allegations against him.Where the allegations contained in the petition before the disciplinary tribunal, as opposed to criminal tribunal, contains all the essential elements and enough information, it is not necessary to make reference to particular breaches of the rules as in a criminal case See

MDPDT v. Okonkwo (supra) and Idowu v. LPDC (1962) All NLR 128 as it will be necessary in a criminal trial. In my humble opinion, the absence of a formal charge did not occasion any miscarriage of justice, the appellant was well aware of the complaint against him. ”

Per MUSDAPHER, JSC.

At page 113, EJIWUNMI, JSC expressed similar opinion in the following words:-

” … the reference to “charge” in the above provisions should not be read to mean that only a formal charge or charges would suffice to bring home to the person concerned the complaint brought against that person ….It is my view that it will amount to undue technicality to contend that because the word “charge” was not used, the allegation against the appellant was not brought to his knowledge and therefore he was not made aware of the complaint against him. In this con, it must be borne in mind that the proceedings before the respondent is not expected and indeed not required to be conducted as a full scale criminal trial. If that then be the position, the word” charge” read in that con is simply a “complaint” that discloses a prima facie case that deserves to be investigated and determined by the respondent. ”

My learned brother, now of blessed memory, PATS ACHOLONU, JSC at pages 115-116 of the report put the matter in his characteristic graphic way thus:-

” … the characteristics or feature of a charge do not lie in procedural formalism but rather in the con of the unrighteous act being brought to the knowledge of the person so indicted in good lucid and really understandable English as in the present case. In the case before us now, the charge as I choose to call it, the document was couched in simple prose and he was requested to appear before the Peers of his profession.

It is not an indictment wearing a criminal garb. The issue before us is as to whether the act of the appellant constituted a gross misconduct to affect his status in the profession of the Bar: Therefore to latch or clutch on the defence of improper charge laid, shows the inability of the appellant to fully grasp the nuance associated with the procedure in handling his case by the respondents. ”

From the statement of the law as handed down by this court in the above passages, I have no hesitation in holding that having regard to the facts and circumstance of this case, the appellant has not satisfied this court that the absence of a formal charge in the proceedings before the 1st respondent resulted in any miscarriage of justice calling for our intervention. On the contrary I agree with the above decision of this court that under the rules of the 1st respondent a formal charge need not be drafted and filed against any legal practitioner “charged” with offences relating to professional misconduct provided the complaints against him have been sufficiently brought to his notice in the language he understands with sufficient details of the offences alleged, as was done in the instant case. I therefore resolve the second issue also against the appellant.

On issue No.3, learned counsel for the appellant submitted that the decision of the 1st respondent in respect of the instant case does not qualify as a legal decision and/or in the alternative one of those who participated in the delivery of the judgment but did not hear evidence renders the proceedings unlawful and thereby liable to be set aside. Referring the court to the record, learned counsel stated that the judgment was delivered by the Chairman of the 1st respondent and was signed by him only, that no other member was recorded as agreeing with the judgment, nor signed the judgment along with the Chairman in gross violation of paragraph 16(b) of

the Legal Practitioners (Disciplinary Committee) Rule; that by the said paragraph 16(b) it is the committee itself, not an individual member, that can give judgment and direction of the type contemplated therein and that a pronouncement by only one member is not sufficient for the purpose; that since the committee is comprised of 11 persons and there is no provision for quorum but by the provision of section 27(1)( a) of the Interpretation Act, cap. 192 Laws of the Federation, 1990 the 1st respondent can act by at least 6 members of those persons, but that they did not sign the judgment.

In the alternative counsel submitted that since the judgment was delivered jointly with a person who did not participate in the hearing of the matter, the judgment is invalid; relying on Adeigbe v. kusimo (1965) 1 All NLR 248; (1990) (Reprint) 260 at 263 learned counsel stated that the reasons stated in that case do not avail the respondents in the instant appeal and urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the 1st respondent submitted that the 1st respondent was properly constituted at all times material to the facts and circumstances of the case; that the complaint of the absence of a member of the panel that heard the matter at the delivery of the judgment cannot in any way impeach the proceedings provided the tribunal did form a quorum at the time of delivery of the judgment, that there were five consistent members of the panel that heard the evidence and delivered the judgment and that there is no evidence on the face of the record that Mr Nwanodi was involved in the delivery of the judgment particularly as he neither signed the judgment or directions nor participated in its reading and that the mere erroneous reflection of his name on record cannot be interpreted to mean that he actually participated in the act; that the decision delivered by the Chairman was already deliberated upon by all the members prior to its delivery by the Chairman who was mandated to sign the decision. Learned counsel further submitted that the appellant having admitted that Mr. Nwanodi neither heard evidence nor subscribed to the directions cannot in the same breath contend that the mere presence of Mr. Nwanodi should nullify the proceedings as a party cannot approbate and reprobate, relying on

Ude v. Nwara (1993) 2 NWLR (Pt.278) 638. Learned counsel then cited and relied on the dictum of ADEMOLA, CJN in Adeigbe v.Kusimo supra at 264 and submitted that a mere variation in the composition which does not affect the substance of the inquiry cannot touch on the competence of the directions particularly as the name of Mr. Nwanodi was erroneously included in the record. On the sub-issue of quorum, learned counsel for the 1st respondent referred to item 1 of the second schedule of Cap. 207 laws of the Federation 1990 and submitted that the quorum of the committee is five, three of whom shall be the Chairman, any justice of the Court of Appeal; any two Judges or two Attorneys-General or four members of the Nigerian Bar Association; that there were six members present at the hearing while five members were present at the delivery of the decision; and urged the court to discountenance the argument on quorum.

On his part, learned counsel for the 2nd respondent submitted that the presence of Mr. Nwanodi at the delivery of the judgment did not invalidate the findings of the 1st respondent, particularly as the 1st respondent is not a court, properly so called;that once the 1st respondent had reached a decision in writing which was pronounced in public in accordance with rule 12 of the LPDC Rules, it is valid and binding and that the presence or absence of any member who sat and heard a case does not affect the collective decision of the 1st respondent and urged the court to resolve the issue against the appellant.

It must be noted that appellant filed no reply brief in his action.

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 (b)of Decree No. 21 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 belong 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 hearing 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 stated 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 there 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.In the case of Adiegbe v. Kusimo supra at 264, ADEMOLA CJN stated the position thus:-

“The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the persons who gave it had not seen and heard all the witnesses they could not appraise the evidence as a whole and decide the facts properly

… We are therefore of the opinion that variations in the Bench does not make a judgment a nullity. They may make it unsatisfactory and it may have to be set a side for this reason but whether they do or not depends on the particular circumstances of the case.”

Applying the decision of this court supra to the facts of this case I hold the firm view that the facts and circumstance of this case do not warrant the setting aside of the decision of the 1st respondent the same having been found to be in very substantial compliance with the relevant law and rules applicable to the proceedings of the 1st respondent who is not a regular court of law but an administrative tribunal or body with power to decide its own procedure and lay down rules for the conduct of inquiry regarding discipline within the legal profession. No miscarriage of justice is apparent on the face of the record by the erroneous reflection of the name of Mr. Nwanodi in the panel of the 1st respondent that delivered the decision of the 1st respondent in this matter neither has learned counsel for the appellant demonstrated any miscarriage of justice resulting there from in his argument on the issue before this court. I therefore resolve the issue against the appellant.

On issue No.4, learned counsel for the appellant submitted that the judgment of the 1st respondent which purports to punish the appellant does not reflect analysis and consideration of issues arising in the matter; that the 1st respondent “manufactured” evidence for the 2nd respondent and found the appellant guilty of an offence not alleged against him nor disclosed in the complaint before it. Referring specifically to the judgment learned counsel stated that it spans only two and a half pages and that the findings of facts were made without analyzing the facts. Learned counsel admitted that the 1st respondent summarized the facts before it but stated that the said facts were not analyzed, or appraised or evaluated; that it is not enough for a court to summarize or recite or restate evidence, relying on Imah. v. Okogbe (1993) 9 NWLR (Pt.316) 159; Mogaji v. Odofin (1978) 4 Sc. 91 at 93-95; Atoyebi v. The Governor of Oyo State (1994) 5 NWLR (Pt.344) 290; that a tribunal charged with the performance of Judicial functions should normally state reasons for its conclusions and that, to decide without reason leaves room for arbitrariness, relying on Agbanelo v. UBN Ltd. (2000) 7 NWLR (Pt.666) 534 at 547-557. Referring to the finding of the 1st respondent at page 27 of the record learned counsel submitted that the finding that the. 2nd respondent had not been paid any amount by the appellant despite her repeated demands or that the 2nd respondent came to Nigeria from Cameroun for the purpose is utterly false as it is not by evidence, on record.

Referring to page 26 of the record particularly the portion that sets out the complaint against the appellant, learned counsel submitted that the 1st respondent did not make any specific finding of fact to the effect that the petitioner demanded for her money to be returned; or that the appellant refused to accede to the demand.

particularly as it is the duty of the court to consider and make relevant findings on the issues placed before it, relying on Udengwu v. Uzuegbu (2003) 9 MJSC 70 at 82; (2003) 13 NWLR (Pt.836) 136, that if the 1st respondent had been clear in its mind about what it was considering, it would have been apparent that there was no evidence to found a case of prior demand for N25,000.00 and an alleged refusal by the appellant to pay; that the finding of the 1st respondent of “failure to pay over money” to the 2nd respondent was not the basis of the complaint before it particularly as the words ”failure” and “refusal” are not identical in meaning, that the 1st respondent’s finding that appellant was guilty of infamous conduct suffers from the following defects:-

(a) it was based on a snappy shortcut decision

(b) not one tenable reason was tendered by the LPDC for the finding.

(c) the LPDC did not even pretend that it had subjected the evidence to any type of analysis,

(d) the finding of failure to pay money is different from the complaint of refusal to pay the money.

(e) no evidence of demand for refund and or refusal to accede to the demand existed on record.,

(f) the infamous conduct was therefore not proved and urged the court to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned counsel for the 1st respondent’s reaction to issue No.4 is as argued in his issue No. 1 in which he submitted that appellant admitted the unjustified retention of the money in question and was therefore properly found liable by the 1st respondent, that appellant did confirm that the 2nd respondent had prior to the filing of petition against him dragged the appellant before the Attorney-General of Abia State seeking to collect her money.

In reacting to the issue, learned counsel for the 2nd respondent submitted that an appellate court is usually reluctant to upset a finding of fact made by a trial court which had the opportunity of listening to witnesses and observing their demeanor while testifying and that evaluation of evidence and the ascription of probative value are the primary functions of the trial court, which saw, heard and assessed the witnesses, and submitted that there is nothing on record to show that the finding of the 1st respondent is perverse and relied on the case of Oduwole v.Aina (2001) 17 NWLR (Pt.741) 1 at 47; Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) 136 at 156; Nwaezema v. Nwaiyeke (1990) 3 NWLR (Pt.l37) 230 at 239.

Learned counsel then submitted that the 1st respondent properly evaluated the evidence before coming to its decision and that this court cannot in the circumstance intervene and urged the court to resolve the issue against the appellant and dismiss the appeal.

The law remains that an appellate court is reluctant to upset a finding of fact made by a trial court which had the opportunity of listening to witnesses testify and observing their demeanor and that evaluation of evidence and the ascription of probative value thereto are the primary functions of a trial court which saw, heard and assessed the witnesses. Where a trial court clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not the business of an appellate court to substitute its own views of the facts for those of the trial court. It is only where the trial court is proved to have abdicated this function or in carrying out the function makes an unsound finding that an appellate court can justifiably step in to do so or set aside such unsound finding for being perverse – see Oduwole v. Aina (2001) 17 NWLR (Pt.741) 1 at 47; Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) 136 at 156.

From page 24 of the record the 2nd respondent testified inter alia:-

“The respondent got the Cameroon judgment registered and proceeded to enforce it. Some of the movable properties of the judgment debtors were sold but the long and short of the matter was that the respondent never paid to me any amount out of the money he recovered from the judgment debtors. I had to come from the Cameroun to Nigeria several times but the respondent did not pay any sum of money to me ….. ”

Under cross examination by the appellant, the 2nd respondent stated thus:-

“The total money which you told me you collected was about N25, 000. 00. The Assistant Chief Registrar of Abia High Court, Mr. Morgan Ubiadah said that the money had been paid to you. It is true that you and I had appeared before a panel headed by Attorney-General,Abia State over the matter … you told me to go back to Cameroun. I did. When I came back nothing was still paid to me.”

After the 2nd respondent had been cross examined by the appellant, the 2nd respondent closed her case and the appellant opened his case by tendering and relying on his reply to the petition of the 2nd respondent dated 26/6/2001 and added that “the amount so far paid to me by the Registrar is less than N25,000.00. There is still a balance of N5,000. 00 unpaid till today I still have N18,000.00 in my hand which I have not paid to her ”

Under cross examination by Oye, Esq. appellant stated inter alia thus:-

“It is true that the client’s money has been in my possession for the last two years. I have never hidden this fact which I also disclosed to A-G Abia State when trying to settle the matter … ”

In answer to question by the LPDC, appellant stated thus:-

“I confirm that I still have N18,000.00 of the petitioner’s money in my possession. Even if I take 25% of the amount as the agreed legal fee to be paid to me, I am still owing the petitioner some money I do not have the whole money to be refunded to the petitioner here now. ”

In the judgment of the 1st respondent appears the succinct summary of the cases as put forward by both parties to the case and the judgment of the 1st respondent. The summary is direct and to the point relevant to the issue for determination; it includes the following:-

“The lynch pin of her reply to questions put to her under cross examination is that although the respondent admitted that he collected a total of about N25,000.00 (twenty five thousand naira) on her behalf, she had not been paid any amount by the respondent in spite of repeated demands which entails her coming from Cameroun to Nigeria on several occasions for the purpose of collecting her money. ”

As regards the case of the appellant, the 1st respondent stated thus:-

“Shorn of all irrelevances, the sum total of his evidence is that it is true he collected a sum of about N25,000 on behalf of the petitioner He said that he paid N1, 000. 00 to the petitioner’s son out of the money.

Some part of that aforesaid money also got trapped in the hand of one Morgun Ubiadah of the High Court Registry Official. He admitted that at the time of filing of the petitioner s complaint and even up to the hearing of this matter he still had in his hand N18,000.00 as client’s money which he had not paid to the petitioner. In answer to questions put to him by Dele Oye, Esq., the respondent said that he kept the aforesaid client’s money because the petitioner told him she had lost interest in pursuing the case … ”

The 1st respondent then concluded thus:-

“The petitioner frail old woman who is a widow strikes us a (sic) witness of truth. We accept her testimony which has in fact been confirmed by the evidence of the respondent himself The respondent did not seriously dispute the fact that he received client’s money which he did not pay to the client for a period of over two years. The money even up till now remains unpaid. We therefore have no hesitation in finding you Mr Eke Umazi Ndukwe, legal practitioner guilty of infamous conduct in a professional respect pursuant to the provisions of sections 11(1) of the Legal Practitioners Act, Cap 207 of the laws of the Federation of Nigeria 1990 .. ”

It is the above finding that learned counsel for the appellant has attacked vigorously. It is very clear that the finding that the petitioner, 2nd respondent in this appeal, is a frail old woman who is a widow and strikes the members of the 1st respondent as a witness of truth is completely within the province of the 1st respondent to make particularly as it involves the 1st respondent exercising the opportunity of watching or seeing the said 2nd respondent testify before it and observing her demeanor. Also the finding that the 2nd respondent as a witness of truth falls within that province and this court being an appellate court cannot substitute its own finding for that of the trial tribunal and, in fact, is in law not capable of so doing. It has to be always borne in mind that the complaint against the appellant is mainly that he collected client’s money which he failed or refused to pay over to the client and there is sufficient evidence on record to support the finding that this was the case. The finding is also supported by the testimony of the appellant himself who has in effect substantially admitted the accusation. There is therefore nothing to be analyzed by the 1st respondent. The finding is not perverse and I find no legal basis for this court to disturb the same. I also do not agree that appellant was found liable for a different complaint from that for which he was charged. Whether appellant failed or refused to pay over to the 2nd respondent the sum recovered is of no moment the truth of the matter being that he did not pay the money to 2nd respondent as required of him by the profession he professes to practice. I therefore resolve the issue against the appellant.

During argument in court learned counsel for the appellant had urged the court to exercise its prerogative of mercy/clemency on the appellant who, according to learned counsel, has now fully paid over the sum of N25,000.00 to the 2nd respondent by cautioning and discharging the appellant. He cited and relied on case No. FSC/344/ 1959 IN THE MATTER OF NEDD Vol. 9, Digest of Supreme Court cases by Fawehinmi pages 761-762 now reported in(1960) SCNLR 62 for the plea of clemency.

It must be noted that the payment took place after the judgment

of the 1st respondent was pronounced and therefore does not form part of the main record though learned counsel for the appellant filed a supplementary record to reflect the state of affairs.

However, looking at the decision of the 1st respondent which gave “direction that you Eke Umazi Ndukwe, Legal Practitioner be suspended from the Bar and we also order you not to engage in practice as a Legal Practitioner for a period of one year commencing from today, 7th October, 2002,” it is clear that the punishment was not severe particuiarly as it did not strike out the name of the appellant from the roll of Legal Practitioners in Nigeria. It merely suspended his right to practice as a legal practitioner for a period of one year. This court has the power, in considering appeals of this nature, to either add to, reduce or caution and discharge an appellant where

the appeal is not allowed as in this case but the facts must support the exercise of that discretion. In the instant case the respondents have not asked the court to add to the sentence which I would have considered very seriously having regard to the gravamen of the offence which does not only affect the appellant as a legal practitioner but the reputation of all members of the legal profession in general and the urgent need to try to bring the current wave of professional misconduct under some meaningful control for the good of the nation in general and the legal profession in particular. Since there is no such request, I will not consider it.

I however consider the suspension of the appellant for a period of one year to be very lenient and hold the view that it be not disturbed.

In conclusion, I find no merit in the appeal which is accordingly dismissed and the application for the exercise of prerogative of mercy on the appellant is refused. The judgment of the 1st respondent is hereby affirmed with a further order that the one year suspension of the appellant will now take effect from today, the, 9th day of February, 2007 being the day the appeal is decided and the judgment of the 1st respondent affirmed.

I make no order as to costs

Appeal dismissed.

SC.48/2003