Legal Practitioners Disciplinary Committee V. Chief Gani Fawehinmi (1985)
LawGlobal-Hub Lead Judgment Report
A. N. ANIAGOLU, J.S.C.
The proceedings in this appeal relate to a Legal Practitioner who is a Solicitor and Advocate of the Supreme Court of Nigeria, one Gani Fawehinmi Esq., of 28, Sabiu-Ajose Crescent, Surulere, Lagos, and concerns a professional misconduct allegedly committed by him in that he engaged himself in “advertising, touting and publicity” by reason of a publication in a weekly newspaper, the “WEST AFRICA’, dated 23rd March 1981, which read as follows:
A NEW BOOK ON NIGERIAN CONSTITUTION
NIGERIAN CONSTITUTIONAL LAW REPORT
1981 Volume One
CHIEF GANI FAWEHINMI
the famous reputable and controversial Nigerian Lawyer…”
The issue which falls now, to be decided in this appeal is not whether or not Chief Gani Fawehinmi (hereinafter simply referred to as “Gani”) committed the alleged misconduct, but the preliminary issue of the competence of the individuals scheduled to adjudicate on the matter under the Legal Practitioners Act 1975, to hear it, having regard to the principles of natural justice
particularly the principles of natural justice which forbid a person to be an accuser as well as the judge at the same time in a case, and the one which demands fairness in the prosecution of a person accused.
As it turned out, after the Legal Practitioners Disciplinary Committee (hereinafter referred to as the “L.P.D.C”) had put up and served the two charges under section 10(1) (a) of the Legal Practioners Act, 1975, Gani preempted the proceedings and, obviously quia timet, filed an ex-parte motion, seeking for an order nisi of prohibition, for the High Court to stop the L.P.D.C., as constituted, from proceeding with the hearing of the matter. This is the matter with which this Court is concerned, in this appeal for the meantime.
But before I embark upon a determination of this legal issue and other legal issues ancillary thereto, it will be worthwhile to set out, in some form of chronology, the facts which have led to these proceedings.
It all started with that publication (hereinbefore set out) in that old established magazine “WEST AFRICA” at page 621 of its 23rd March issue. On 1st December 1983, one Mrs. 0.0 Fatunde acting for the Solicitor-General of the Federation and Permanent Secretary, Ministry of Justice, wrote a letter Exhibit C to Gani in this vein:
“Federal Ministry of Justice,
Industrial and Mercantile Law Division,
Ref. No. DI7/235/70
1st December, 1981
Chief G. O. Fawehinmi,
28, Sabiu-Ajose Crescent,
The attention of the Hon. Attorney-General of the Federation and Minister of Justice has been drawn to the advertisement contained on page 621 of March 23rd issue of ‘WEST AFRICA’ captioned as follows:-
‘A NEW BOOK ON NIGERIAN CONSTITUTION
NIGERIAN CONSTITUTIONAL LAW REPORTS
1981 Volume One Edited by
CHIEF GANI FAWEHINMI
the famous, reputable and controversial Nigerian Lawyer…
- It is the view of this Ministry that the conduct offends against Rules 33 and, 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69, No.5 of Vol.67 in the Official Gazette of 18th January 1980 which prohibits ADVERTISING, TOUTING AND PUBLICITY.
3.I am therefore directed by the Honourable Attorney-General of the Federation to request you to show cause by way of written explanation within 14 days thereof why the matter should not be referred to the Legal Practitioners Disciplinary Committee for appropriate action.
O. O. Fatunde (Mrs.)
for: Solicitor-General of the Federa
tion and Permanent Secretary”
The formal charges dated 3rd December 1981 against Gani were contained in EXHIBIT D1, signed by the same Mrs. O. O. Fatunde, described therein as the “Prosecutor”. She also signed the hearing notice, EXHIBIT D, which gave the hearing date as 25th January 1982. Exhibit D1 reads:
“THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
HOLDEN AT LAGOS, NIGERIA
IN THE MATTER OF PROFESSIONAL CONDUCT IN THE
Charge No. LPDC. 2/81
Re: CHIEF GANI FAWEHINMI
That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the Roll of Legal Practitioners in Nigeria, on or about the 23rd of March, 1981 at Lagos, did commercially advertise the importance of your position as a lawyer in Nigeria at page 621 of the periodical called “West Africa” of 23rd March 1981 issue by describing yourself as ‘the famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 33 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a legal practitioner within the intentment of section 9(1) of the Legal Practitioners Act 1975 (No.15) and therefore liable to be disciplined in accordance with the provisions of section 10(1)(a) of the Legal Practitioners Act 1975.
That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the Roll of Legal Practitioners in Nigeria, on or about 3rd of March 1981, at Lagos, caused or permitted to be published the importance of your position as a lawyer in Nigeria at page 621 of the periodical called ‘West Africa’ of 23rd March 1981 issue by describing yourself as the ‘famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a legal practitioner within the intentment of Section 9(1) of the Legal Practitioners Act 1975 (No.15) and therefore liable to be disciplined in accordance with the provisions of section 10(1)(a) of the Lega1 Practitioners Act 1975.
O. O. Fatunde (Mrs.)
Dated this 3rd day of December, 1981.
“Address for Service:
Chief Gani O. Fawehinmi,
28, Sabiu-Ajose Crescent,
(Behind Adeniran Ogunsanya Shopping Centre).
Exhibit D3 carried, in summary, the Legal Practitioner involved, the complainant shown there to be the “Federal Ministry of Justice” and the nature of the complaint. That document is hereby set out:
FILE NO. DIL/283
LEGAL PRACTITIONER Chief G.O. Fawehinmi 28, Sabiu Ajose Crescent, Surulere, Lagos.
COMPLAINANT Federal Ministry of Justice, Ikoyi,
NATURE OF COMPLAINT
The said Legal Practitioner who is resident in Lagos caused an advertisement to be published at page 621 of March 1981 issue of the ‘West Africa’ Magazine, Captioned’ A New Book on Nigerian Constitution’. The Book is said to be edited by the Legal Practitioner who is described therein as ‘the famous, reputable and controversial Nigerian Lawyer’ – The conduct of the Legal Practitioner offends against the Provisions of Rule 33 of the Rules of Professional conduct in the Legal Profession by tending to show the Legal Practitioner’s position in the Nigerian Society, It also offends against the provisions of Rule 34 in that the said Legal Practitioner has lent his name together with a description ‘Lawyer’ for use in a commercial Advertisement other-wise than as provided by the said Rules”
Be it noted that the letter, Exhibit C, in its paragraph 3 requested Gani to submit a –
“written explanation within 14 days why the matter should not be referred to the Legal Practitioners Disciplinary Committee for appropriate action”
That would have left the matter open till at least 14th December 1981. Despite that, however, on 3rd December, 1981 the charges (Exhibit D1) were framed and served on Gani.
As stated by Gani before us in this Court, it was this haste in the framing of the charges which excited his suspicion and put him in fear, leaving him in doubt as to whether his trial would be fair.
This excitement, fear and doubt pushed him into a flurry of activities, starting with the ex parte motion, which was heard by C.A. Johnson, J. (as he then was) on 27th January 1982, who granted the Ordernisi, holding that:
The Court is satisfied that sufficient crime (sic) has been shown to entitle the applicant to the order sought. Leave is accordingly granted to apply. It is further directed – The Legal Practitioners Disciplinary Committee should stay further proceedings in respect of the charges against the applicant until his application is finally determined by the Court:
Application adjourned till 8/2/82″
An enrolled order of the Court of the same date prohibited the L.P.D.C. from proceeding with the matter until the final determination of the application.
The Order reads:
“UPON THIS MOTION EX-PARTE coming before this court and upon reading the affidavit in “support of the motion sworn to and filed by Chief Gani Fawehinmi of 28, Sabiu Ajose Crescent, Surulere, Lagos State on the 25th day of January, 1982 and after hearing Olu Onagoruwa Esquire, who with others appeared as Counsel for the applicant in support of the motion:
It is hereby ordered that leave be, and is accordingly granted to the applicant to apply for an order prohibiting the respondent the Legal Practitioners Disciplinary Committee from considering and determining the complaint and charges made against the applicant.
It is further directed that the Legal Practitioners Disciplinary Committee should stay further proceedings in respect of the charges against the applicant until this application is finally determined by the court.
It is also ordered that the case be made returnable for Monday the 8th day of February, 1982
Dated at Lagos this 27th day of January, 1982”
The next day, 28th January 1982, Gani, by notice of motion of that date, put the L.P.D.C..on notice. By an affidavit sworn to on 4th February 1982 by one ADETUNJI FADA YIRO, a Legal Practitioner of 110, Ibara Road, Abeokuta, who was then the President of the Nigerian Bar Association, it was disclosed that it was the National Executive Committee of the Nigerian Bar Association at its meeting in Calabar on 24th April 1981 which decided that the conduct of Gani should be referred to the Disciplinary Committee. The matter was subsequently referred to the said Committee by the Secretariat of the National Executive Committee which reported back to the National Executive Committee at its meeting in Maiduguri on 3rd July 1981. The obvious implication of this was that the Appellant was maintaining that the Attorney-General (then Chief Richard Akinjide) was not responsible for sending the matter to the Disciplinary Committee and, therefore, could not be said, as maintained by Gani, that he was in a desperate hurry to do Gani in, thus obviating the Respondent’s assertion that there was a real likelihood of bias. Gani denied Mr. Fadayiro’s affidavit, first in his affidavit sworn to on 8th February 1982, in which he asserted that at the sitting of the L.P.D.C. on 25th January 1982, Mr. Idowu Sofola sat as a member of the Committee and secondly in another affidavit of 9th February 1982 in which he swore that both Mr. Adetunji Fadayiro and Mr. C.O. Njemanze also sat as members.
Arguments on the Motion on Notice were heard by C.A. Johnson, J. (as he then was) on 25th February 1982. Dr. Onagoruwa led Counsel appearing for Gani, while Chief F.R.A. Williams, SAN, led the team appearing for L.P.D.C. The grounds of complaint by Gani, upon which all the arguments centred, were set out in paragraph 3 of a “Statement” dated 25th January 1982 which accompanied the aforementioned “Notice of Motion” of 28th January 1982. The said paragraph 3 reads:
“3. THE GROUNDS UPON WHICH THE SAID RELIEF IS SOUGHT ARE:-
(1) The active involvement of the office of the Attorney-General of the Federation as the Complainant, and the prosecutor in the complaint and charges against Chief Gani Fawehinmi (the Applicant) before the Legal Practitioners Disciplinary Committee in which the Attorney-General of the Federation is Chairman contravenes or is likely to contravene the Applicant’s fundamental right to fair hearing under Section 33 of the Constitution of the Federal Republic of Nigeria 1979.
“(2) The mode or manner by which the complaint and charges against the Applicant are to be considered and determined by the Legal Practitioners Disciplinary Committee contravenes or is likely to contravene the Applicant’s fundamental right under Section 33 of the Constitution of the Federal Republic of Nigeria 1979 in that:-
(a)The Constitution of the Legal Practitioners Disciplinary Committee vis-a-vis the complaint and charges against the Applicant does not secure the independence and impartiality of the Committee.
(b)The Chairman of the Legal Practitioners Disciplinary Committee is the Federal Attorney-General and Minister for Justice and he is also the complainant and the prosecutor.
(c)The complainant, Prosecutor and the Chief Judge (i.e. the Chairman) are one and the same person.
(d)proceedings of the said Legal Practitioners Disciplinary Committee by tile way it is constituted in this particular instance will be contrary to the principle of Natural Justice i.e. No one can be judge in his own cause (nemo judex in causa sua potest. )
(e)As a result of the part played by the Attorney-General of the Federation in bringing the complaint and charges to the Legal Practitioners Disciplinary Committee, there is a real likelihood of bias on his part as Chairman of the Disciplinary Committee in the consideration and determination of the said complaint and charges”
A further affidavit sworn to by Gani on 26th January 1982 shows how mentally disturbed he must have been and the fear that must have gripped him, for, in paragraphs 1 and 2 he swore as follows:
“1. That on Monday the 25th of January 1982 swore to an affidavit in support of my application for the enforcement of my fundamental right.
- That on Monday the 25th January 1982, I appeared before the Legal Practitioners Disciplinary Committee in the Conference Room of the Nigerian Law School Victoria Island Lagos at 3.15 p.m. where I was told by the Chairman of the Committee – Chief Richard Akinjide – the Attorney-General of the Federation who presided that my case would be adjourned to February 22, 1982 when the trial would begin”
At the conclusion of hearing the learned trial Judge C.A. Johnson, J. (as he then was, for he is now the Chief Judge of Lagos State) decided in favour of Gani and came down heavily in favour of Gani’s view that there was, on the known facts, a real likelihood of bias, if the Committee as constituted, was allowed to determine the charges against the applicant. For its importance I set out the final part of his Ruling at pages 46 to 47 as follows:
‘The basis of the charges against the applicant is the appearance of an advertisement in the West Africa Magazine in which he was described as the famous, controversial and Nigerian reputable lawyer. What are the circumstances of this publication, who is responsible for the publication What connection if any has the applicant with the descriptive words associated to his name All these are probably questions which an explanation “from the applicant could have answered had the complainant not robbed itself of the opportunity of hearing from the applicant. Not having done that one can only conclude that the conclusion of the complainant is based on no other facts than the mere contents of the advertisement. Can it be said to be fair or impartial to proceed to conclusion that an offence had been committed by a practitioner or to frame charges against him on the basis of an assumption It is circumstances as this that tend to create suspicion that there is a real likelihood of bias and that nobody who had behaved in that manner can be said to be independent and/or impartial in his view over the issue. In my view neither the members of the Executive Committee present at the meeting held at Calabar on the 25th of April, 1981 nor the Attorney-General of the Federation is competent to sit on the Disciplinary Committee if the provision of Section 33(1) of the Constitution is to be preserved and enforced. It is not for me to speculate on what steps ought or ought not to be taken to make it possible for the committee to be constituted to bring it within the provisions of Section 33(1) to ensure a fair hearing. It is only sufficient for me to hold as I here do, that the Disciplinary Committee set up to adjudicate on the charges against the applicant on the prevailing facts is in breach of the provision of Section 33(1) as being constituted in such manner as to be unlikely to secure its independence and impartiality. I am satisfied that there is a real likelihood of bias if on the known facts the committee as constituted is allowed to determine the charges against the applicant.
I therefore hold that the proper course for the Court is to prohibit the present committee as it is constituted from adjudicating on the charges framed against the applicant, and the court accordingly so orders.
The L.P.D.C., being dissatisfied with the learned trial Judge’s Ruling appealed to the Federal Court of Appeal (now the Court of Appeal) on three grounds which read:
“1. The learned Trial Judge erred in law in construing Section 33(1) of the Constitution without paying any regard what-so-ever to the provisions of subsection (2) of that Section when –
(a) In the con of the case before it, it is clear that the Legal Practitioners Disciplinary Committee was exercising the power to determine a question arising in the administration of the Legal Practitioners Act, the said Act provides for an opportunity for a person whose rights are affected by the decision of the said Committee to make representations to it before it makes its decision and the said Act contains no provision making the determination of the Committee final and conclusive.
(b) The Legal Practitioners Disciplinary Act contains adequate provisions which meet the requirements of Section 33(1) of the Constitution in all cases in which a legal practitioner accused of professional misconduct intends or desires to contest such accusation.
(c) In the premises, the court is not required to imply the rules of natural justice or the requirements of Section 33(1) of the Constitution in construing the provisions of the Legal Practitioners Disciplinary Act in so far as it deals with the functions and powers of the Disciplinary Committee.
- The learned Trial Judge erred in law in failing to consider the implications of the Supreme Court decision in Falomo v. Lagos State Public Service Commission 1977 5 SC 51 which was cited to him and which is relevant to this case, having regard to the provisions of the Legal Practitioners Disciplinary Act, 1975. In particular the learned Judge failed to observe that the stage of the proceedings at which Section 33(1) of the Constitution will apply has not been reached in this case.
- The learned Trial Judge erred in law in making a finding on the truth or otherwise of the Affidavit filed on behalf of the Respondents when the deponent was not cross-examined and there is nothing inherently improbable in the said affidavit”
The Court of Appeal in a unanimous and considered judgment of five Justices, dismissed the appeal. It is from that judgment that the L.P.D.C. has now appealed to the Supreme Court upon grounds of appeal which carry the same theme, and present more or less the same focus, as those argued before the Court of Appeal, the essence being the issue of natural justice with particular emphasis on Sections 33 and 42 of the Constitution of Nigeria and the Fundamental Rights (Enforcement Procedure) Rules 1979 made pursuant to the Section 42(3) of the same Constitution.
In the lead judgment of the President of the Court of Appeal, Nasir, P,C.A., to which the rest concurred, it was said, rightly in my view that “The crux of the matter is to give the person accused a fair hearing”
Towards the end of the said judgment, the Court of Appeal held that not all members of the Disciplinary Committee should be barred from taking part in the determination of the charges but that the disqualification should be limited “to those members tainted it) one form or the other” The salient part of the Court’s conclusion brings into prominence the gist of the complaint of the Applicant and reads:
“It will also, in my opinion, be unreasonable to disqualify all members of the Disciplinary Committee just because some of them investigated the particular dispute. Both Chief Williams and Chief Fawehinmi, in effect, have limited their arguments to those members tainted in one form or the other. Having given due consideration to the whole case I am of the opinion that only the particular Attorney-General of the Federation who gave the orders ought to be disqualified from sitting as chairman. In respect of the members of the National Executive of the Nigerian Bar Association only those who actively took part in formulating and making the complaint should be disqualified from sitting as members of the Disciplinary Committee.
In conclusion, I am of the opinion that this appeal fails. I hereby order that the Attorney-General of the Federation, (Chief Akinjide) and the three members of the Disciplinary Committee against whom complaint has been made are prohibited from taking part in any future proceedings as members of the Disciplinary Committee for the frame (sic) against the Respondent. Subject to the above the Legal Practitioners Disciplinary Committee is free to proceed with the charges framed against the Respondent if they so wish”
Each side filed its own brief which was later amplified in an oral argument before us. Both in his brief and oral argument, Chief F.R.A. Williams, SAN, for the appellant, submitted that the Court of Appeal failed to address itself to the proper interpretation and application of the provisions of section 33 of the 1979 Constitution which in its fundamental essence required that a person be given a hearing before his civil rights and obligations are finally determined-such hearing being before
“a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”
This latter requirement, he submitted, was rather a definition of the quality of the hearing that will satisfy the Constitutional provision. Section 33 of the Constitution, he submitted, was not meant to apply to the Disciplinary Committee whose function at that stage was merely administrative – not being the “Court” or “tribunal” which would decide the fate of the Legal Practitioner.
It was possible, he said, to attack the composition of to Appeal Committee of the Body of Benchers which had the duty to decide, on any ground envisaged by section 33 of the Constitution or to attack the Supreme Court which had the duty of hearing an appeal from the decision of the Body of Benchers. Those two bodies he said would have to conform with the said S.33 as a “court or other tribunal” – unlike the legal Practitioners Disciplinary Committee which, having regard to the provisions of the Legal Practitioners Act,
“is predominantly an administering authority of the type envisaged under Section 33(2) rather than “a court or tribunal” of the type envisaged under Section 33(1)”
Essentially, he said, the function of the Legal Practitioners Disciplinary Committee is to set the ball of disciplinary proceedings in motion – a test which is basically an administrative function although, like a decision to prosecute a criminal case, it is preceded by, and based upon, a quasi-judicial decision by the prosecutor to prosecute, which would not turn the prosecutor into a “court” merely because he decided to prosecute. The work of the Disciplinary Committee, he submitted, was the initiation of the process. Chief Williams cited a number of authorities in support of his propositions. WISEMAN v. BORNEMAN (1971) A.C. 297 at 310 – 311 referred to the statement of Lord Guest that where a statutory tribunal has been set to decide final questions affecting parties rights and duties the principles of natural justice should be applied but where the tribunal has to decide a preliminary point which does not finally decide the rights of the parties the court has to decide whether, and if so to what extent, the principles of natural justice should be followed by the Tribunal. He commended this Court to prudently bear in mind, in interpreting S.33 of the Constitution 1979, the observations of Lord Wilberforce in MINISTER OF HOME AFFAIRS v. FISHER (1980) A.C. 319 at 328, inter alia, that the interpretation of these “post-colonial” Constitutional instruments drafted for erstwhile British colonies starting with the constitution of Nigeria and including the constitution of Bermuda from which that appeal emanated, called for a generous interpretation avoiding what has been called “the austerity of tabulated legalism”.
Chief Williams submitted that the proper interpretation and application of the provisions of section 33 of the constitution, 1979, lies in the fundamental and essential requirement of that section that a person be given a hearing before his civil rights and obligations are finally determined, and referred to the observation of Mr. Justice Stone of the Supreme Court of the United States to that effect, in OPP COTTON MILLS INC. v. ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOUR 85 L.ED. 624 at 640. The anchor to which Chief Williams generally hinged his argument was his proposition that the work of the Legal Practitioners Disciplinary Committee was, at that stage of the proceedings against Gani, merely administrative and he referred to a number of decided cases, including:
DR. Falomo v. Lagos State Public Service Commission (1977) 5 S.C. 51
Twist v. Council of the University of Ran wick 136 C. L. R. 106 Literature Board of Review v. H.M.H. Publishing Co. Inc. (1964) Queensland Rep. 26
Ibeziako v. Commissioner of Police (1963)1 All N.L.R. 61
Marshall v. Jerico Inc. 64 L. Ed. 2nd 182.
Withrow v. Larkin 43 L. Ed. 2nd 712.
Attorney-General v. BBC (1981) A.C. 303 at 359 – 360.
B In fairness to him, he has conceded in his brief as hereinafter set out that if the Legal Practitioners Disciplinary Committee should be held to be a court or Tribunal” under Section 33(1) of the Constitution, the issue in this appeal must be resolved in favour of the Respondent.
Chief Gani Fawehinmi, the Respondent, submitted that
“THE ONLY ISSUE RAISED BY THE APPELLANT IS WHETHER THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE IS BOUND TO OBSERVE THE PRINCIPLES OF NATURAL JUSTICE OR PUT MORE CLEARLY, WHETHER THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE IS BOUND BY SECTION 33(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1979”
He contended that under the provisions of the 1962 Legal Practitioners Act there were two bodies dealing with discipline, namely, the Legal Practitioners Investigating Panel and the Legal Practitioners Disciplinary Tribunal. The former was exclusively charged under Section 6(3) with the duty of conducting a preliminary investigation into an allegation of professional misconduct against a legal practitioner, while the latter, under section 7 was vested with the power of trial and punishment. The arrangement he argued made for fairness. None of the panels would be an accuser and the judge at one and the same time.
He submitted that the 1975 Legal Practitioners Act made a fundamental change to the 1962 arrangement by establishing a Legal Practitioners Disciplinary Committee which, under its Section 9, was charged with the duty of CONSIDERING and DETERMINING any case of misconduct against a legal practitioner, and under section 10, with the power of TRIAL AND PUNISHMENT. By the 1975 Act, he said, the Legal Practitioners Investigating Panel was abolished.
He submitted finally that the Legal Practitioners Disciplinary Committee is a quasi-judicial tribunal whose decision
“can affect the rights of others particularly their means of livelihood”
and therefore ought to be made to observe the principles of natural justice of fair hearing, since it is a body which has to decide
“between an allegation and a defence”.
By reason of the powers invested on the Legal Practitioners Disciplinary Committee such as the power of withdrawal or temporary suspension, Chief Fawehinmi submitted, that the exercise of those powers involve the determination of civil rights and obligations within the con of S.33(1) of the 1979 Constitution.
It appears to me that a convenient starting point in the determination of this appeal may be a close-up examination of section 33, sub-sections (1) and – (2) of the 1979 Constitution. The sub-sections read:
33.-(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive”
The concessions made by the parties in their briefs have considerably narrowed the issue between them. For the Appellant Chief Williams has stated at page 7 of his brief that:
“…..The Appellant does not dispute that if in the con of the Legal Practitioners Act, the Legal Practitioner’s Disciplinary Committee is a “court or tribunal” as envisaged under section 33 of the Constitution, then, as constituted at all times material to this appeal, it ought to be prohibited from adjudicating on the complaint and charges against the Respondent”
In his own brief under the title “ISSUE” Chief Fawehinmi has stated, as hereinbefore set out, that the only issue is whether the Legal Practitioners Disciplinary Committee is bound, in deciding his matter, to observe the principles of natural justice.
Now, section 33(1) of the Constitution requires (excluding the words irrelevant for our purpose here) that
“in the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality” (Italics supplied for emphasis)
Thus, the court or tribunal, while determining the person’s civil rights and obligations
(a) must be impartial and independent
(b) must accord the individual a fair hearing.
The Legal Practitioners Disciplinary Committee was constituted under Section 9 of the Legal Practitioners Act, No.15 of 1975 and charged with the duty, under sub-section (1) thereof, of
considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Decree”
After “considering” and “determining” the case, the Legal Practitioners Disciplinary Committee is given powers under Section 10 of the Act of inflicting punishment on a Legal Practitioner whom it has “judged” guilty “of misbehaviour in his capacity as a Legal Practitioner”
The word “judged” is specifically used in section 10(1) (a) and section 10(2). These misbehaviours could be
(a) infamous conduct in any professional respect (S.10(1)(a));
(b) a conviction by any court in Nigeria having power to award imprisonment, of an offence which in the opinion of the disciplinary committee is incompatible with the status of a legal practitioner (S.10(1)(b));
(c) the offence of getting himself enrolled as a legal practitioner by fraud (S.10(1)(c)).
In any of the above three situations, the disciplinary committee, may, if it thinks fit, give a direction
(i) ordering the registrar to strike the name of the legal practitioner off the roll (S.10(1)(c)(i));
(ii) suspending the legal practitioner from practice by ordering him not to engage in practice as legal practitioner for such priod as may be specified in the direction (S.10(1)(c)(ii));
(iii) admonishing the legal practitioner.
Having regard to the above, it is clear that the word “direction” used in Section 10 does not denote a mere innocuous and platitudinous instruction passed by a supervising agent, but assumes the character of a weighty judgment against a legal practitioner the impact of which could have the effect of damaging him and his professional career for ever.
It is true that such a legal practitioner could appeal, within 28 days from the date of service on him of notice of the direction, to the Appeal Committee of the Body of Benchers (Section 10(7) ibid) established under Section 11 and that a further appeal against the “direction” of the Appeal Committee of the Body of Benchers lies to the Supreme Court again within 28 days of the service of notice on the legal practitioner of the direction of the Body of Benchers Appeal Committee under S.11(5); that the direction of the Supreme Court is final S.12 ibid), yet, unless the legal practitioner exercises those rights of appeal, the decision of the Disciplinary Committee pursuant to section 10 would be final and all the directions given by it would be of full force and effect. I shall return to this later.
With much respect to Chief Williams, listening to him presenting his view point about the duties of the Legal Practitioners Disciplinary Committee viz-a-viz the offending legal practitioner, one is left with the cold impression of an Administrative Committee listlessly gathering materials, and administratively preparing the ground, for the real court or tribunal to later come forward and sit in judgment, thus presenting that committee’s job as almost inconsequential fm the purpose of the fate of the legal practitioner. That is far from being so. By the “direction” of the Legal Practitioners Disciplinary Committee (the choice of that word is regrettable for the word is a misnomer and is misleading) a legal practitioner against whom that “direction” has been given may well have taken his first step towards his jeopardy and his ruin, and may well be advised, in his own interest, to take immediate action at that stage to ward off the avalanche before it gathers momentum. Better still, where the option exists, for him to make his move ever before the “direction” is given. Permit this digression my Lords, for which I plead for indulgence, but I am merely emphasizing the importance of a decision of the Disciplinary Committee, as a decision (otherwise called “direction”) and, therefore, how necessary it is for the processes by which that decision was arrived at, to be correct. The decision may well be the beginning of an event which would be worse than death for him since disbarring him would affect his livelihood, his reputation and his profession.
Having said so, I now move on to a determination of whether the Legal Practitioners Disciplinary Committee, having regard to its duties, is a Tribunal which falls within the provision of section 33(1) of the Constitution or that which is envisaged by section 33(2) of the Constitution.
It goes without saying that the Disciplinary Committee is a Tribunal created by a Statute, namely the Legal Practitioners Act, 1975, and therefore is a statutory tribunal. But whether it is a quasi-judicial tribunal as contended by Gani, or merely an Administering Authority as contemplated by section 33(2) as postulated by Chief Williams, is the bone of contention.
It has been said by legal writers that the term “quasi-judicial” may have one of three meanings: firstly, it may describe a function that is partly judicial and partly administrative such as the making of a compulsory purchase order preceded by the holding of a judicial type local inquiry and the consideration of objections; secondly, it may alternatively describe the “judicial” element in a composite function – thus the holding of inquiry and considering objections in respect of a compulsory purchase order become “quasi-judicial” acts; and thirdly; it may describe the nature of the discretionary act itself where the discretion is unfettered. See: de Smith’s Judicial Review of I Administrative Action, 4th Edition p. 77).
But, as stated by John Willis in (1940) 53 Havard Law Review at 281, the tendency in recent years has been for the courts to move away from this classificatory approach in what he called a “highly acrobatic part of the Law” and about which de Smith states that although
“an aptitude for verbal gymnastics is of advantage, a commentator endowed with this attribute is frequently left wondering whether Mr. Justice Malaprop’s formulation is really more dexterous, more fortuitous more laboured or simply more ineffectual than his own would have been” (4th Ed. Review of Administrative Action at p.69).
One test for identifying judicial function has been said to be whether the performance of the function terminates in order that has conclusive effect. The decisions of courts are binding and conclusive, in as much as they have the force of law without the need for confirmation or adoption by any other authority. Thus in IBRALEBBE v. R. (1964) A.C. 900, it is said that even though the Judicial Committee of the Privy Council has a special advisory jurisdiction under Section 4 of the Judicial Committee Act 1833, its decisions in other cases are in effect judgments, but take the form of advisory reports to Her Majesty, which are always promulgated by Order in Council.
Appellant has argued, possibly based upon the above premises, that the “direction” of the L.P.D.C. is not conclusive since appeals lie to the Appeal Committee of the Body of Benchers and finally to the Supreme Court, whose decision is final. Surely, the decision of the Privy Council which takes the form of advisory report to the Queen of England does not cease to be “a judgment” merely because it is couched as an advisory report which could, in theory, be refused by the Queen. In the same way the “direction” by the L.P.D.C. does not fail to be “a decision” by reason of the fact that an appeal lies against the decision to the Appeal Committee of the Body of the Benchers or by reason of the fact that the decision is not called “a decision” but “a direction”.
Another test in identifying whether statutory functions are of a judicial character is said to lie in certain formal and procedural attributes – those trappings and procedure adopted by the courts. Under Section 11(7) of the Legal Practitioners Act, 1975 the Body of Benchers may make rules prescribing the procedure to be followed in the conduct of appeals before the Appeal Committee of the Body of Benchers. I am not aware that any such rules have been made by the Body of Benchers and therefore the test of identification of whether or not the L.P.D.C. is judicial, from the procedure, cannot be applied to its deliberations or the appeal therefrom to the Appeal Committee of the Body of Benchers. But the same cannot be said of the appeal proceedings before the Supreme Court where the Supreme Court Rules obviously apply.
The Legal Practitioners Act, 1975 and the one of 1962 before it, were designed to regulate the practice of the legal profession in Nigeria and to govern the conduct of members of the Bar. The Justices of the Supreme Court who exercise the highest judicial functions of the country, the members of the Appeal Committee of the Body of Benchers, the members of the Body of Benchers, the members of the Legal Practitioners Disciplinary Committee, the lawyer whose conduct is questioned before that committee are all members of the Legal Profession. They are all Ministers in the Temple of Justice; they propound and profess the principles of justice and the Rule of Law; and they protect and defend the rights of the citizens against arbitrary encroachment from any’ quarters. Surely, the tribunal in which they sit to determine the propriety or otherwise of the conduct of one of its members in a professional capacity, cannot be anything less than quasi-judicial.
I am therefore more inclined to think that in the premises, the Legal Practitioners Disciplinary Committee while discharging its duties under sections 9 and 10 of the Legal Practitioners Act, 1975, must be deemed to be a quasi-judicial Tribunal which in the discharge of those duties, must act judicially.
In the instant appeal, the civil rights and obligations of a legal practitioner in relation to his conduct in the practice of that profession are called in for questioning and determination by the Legal Practitioners Disciplinary Committee. Section 33(1) of the Constitution, in my view, applies to the proceedings in that determination, and the Legal Practitioners Disciplinary Committee comes in as a “tribunal” envisaged by that sub-section of S.33 in those proceedings. Sub-section 2 of section 33 states that “a law shall not be invalidated” by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person, provided the law makes provisions for that person to be heard before a decision is arrived at and does not make the decision final and conclusive. In the first place no one is seeking in these proceedings to invalidate the Legal Practitioners Act, 1975, or any of its provisions; in the second place, the Legal Practitioners Disciplinary Committee, having regard to all have earlier said, cannot be regarded as a mere Administering Authority of the type set up by the Executive in the exercise of its executive functions. It does not appear to me that section 33(2) applies.
de Smith has rightly stated that the more closely a statutory body resembles a court stricto sensu. the more likely is it that that body will be held to act in a judicial capacity and that judicial acts may be identified by reference to their formal, procedural or substantive characteristics, or by a combination of any of them. I would, however, be the first to admit that it is not always easy to carry out this classification of tribunals into “judicial” and “quasi-judicial”.
The divided opinions of your Lordships of this court on this classification in HIS HIGHNESS OBA LAMIDI ADEYEMI & Ors. v. THE ATTORNEY-GENERAL OF OYO STATE & ORS. (1984) 1 S.C.N.L.R. 525 offers proof of the difficulty. In that appeal their Lordships Irikefe, Nnamani and Uwais, JJ.S.C., were of the view that the Boundary Settlement Commission appointed under the Local Government Boundaries and Communities Settlement Law was a “judicial tribunal”; Bello, J.S.C.. held that it was “an administrative tribunal exercising judicial powers”; Obaseki, J.S.C., was of the opinion that it was “an administrative or executive tribunal”; while I was of the view that it was simply “a tribunal”.
The more important thing, however, is a consideration of what the tribunal does and its application of the rules of justice to what it does – justifying the present attitude of the court, as hereinbefore stated, of not wasting their energies on fruitless classificatory exercise.
This Court in HART v. MILITARY GOVERNMENT OF RIVERS STATE And 2 Ors. (1976) 1 S.C. 211 was of the view that in earlier times the law was that an administrative body holding inquiry in respect of the retirement of a public officer, may be under a duty, in ascertaining facts, to act judicially notwithstanding that its proceedings have none of the formalities of and are not conducted in accordance with, the practice and procedure of a court of law. It was enough. the court said. if it was exercising judicial functions in the sense that it had to decide, on the materials before it “between an allegation and a defence” The court however accepted the modern concept which, it stated,
“is that the duty placed on such a body is to act fairly in all such cases. No label such as “judicially” or “quasi-judicially” are necessary as they only tend to confuse”.
Having now held that Section 33(1) of the Constitution, 1979, applies to the instant appeal, it is now left to apply its provisions to the facts of this appeal.
It is the accepted law that basic procedural and other requirements of the rules of natural justice have to be observed by every tribunal or authority which is under a duty to act judicially. In MARAN DANA MOSQUE (BOARD OF TRUSTEES v. BADI-UD-DIN MAHMUD & Anr. (1966) 1 ALL E.R. 545 at 550 P.C. a Minister was said by the Privy Council to be acting in a judicial or quasi-judicial capacity in satisfying himself whether there had been a contravention in respect of an Islamic College and must therefore observe the rules of natural justice. The same Court in ATTORNEY-GENERAL v. RYAN (1980) 2 W.L.R. 143 held that a Minister in Bahamas who, under section 7 of the Bahaman Nationality Act 1973, had power to refuse an application for registration, was a person having legal authority to determine a question affecting the rights of individuals and, therefore, was bound to observe the principles of natural justice when exercising that authority.
It goes without saying that in the exercise of its disciplinary authority over erring legal practitioners, the Legal Practitioners Disciplinary Committee, must observe the rules of natural justice. In that con, not only must it not be biased against a legal practitioner whose conduct is being questioned, but also it must not place itself in a position in which it may appear that there is a real likelihood of bias. In DEDUWA v. OKORODUDU (1976) 1 N.M.L.R. 236 this Court was interpreting Section 22 (11) of the 1963 Constitution the provisions of which were in identical terms as section 33(1) of the 1979 Constitution and stated, inter alia, at page 246, that
“A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice”
That there is a real likelihood of bias is by itself a species of partiality and an adjudicating authority must be impartial – a quality accepted in jurisprudence to be of universal application (See: OBADARA v. COMMISSIONER OF POLICE (1965) N.M.L.R. 39 at 44 per Brett. Ag. C.J.N.) and therefore applicable as much to Nigeria as to all civilized countries. Kelly, L.C.B., in 1874 in WOOD v. WOAD (J874) L.R. 9 Ex. 190 at 196, dealing with the universality of the application of the principles of natural justice, stated that the rule of audi alteram partem.
“is not confined to the conduct of strictly, legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals”. (Italics mine)
The term “Real Likelihood” may not be capable of exact definition, since circumstances giving rise to it may vary from case to case, but it must mean, at least. “a substantial possibility of bias”. This may arise because of personal attitudes and relationships, such as: personal hostility; personal friendship; family relationship; professional and vocational relationship; employer and employee relationship; partisanship in relation to the issue at stake, and a whole host of other circumstances from which the inference of a real likelihood of bias may be drawn.
The problem highlighted in this appeal might not have arisen had the neat arrangement provided for, by the 1962 Legal Practitioner Act, No. 33 of 1962 been left in tact, or been re-enacted in the Legal Practitioners Act. 1975. Under the 1962 Act, there were two distinct bodies created.
(i) the Legal Practitioners Investigating Panel established under section 6(3) of the Act; charged with the duty of conducting preliminary investigation into any case of professional misconduct alleged against a legal practitioner and consisting of the Attorney-General of the Federation and of the Regions and ten legal practitioners “of not less than 5 years standing;
(ii) the Legal Practitioners Disciplinary Tribunal established by section 6(1) of the Act with a Judge of the High Court presiding (S.6(2)) whose duty was the considering and determining of any case of professional misconduct investigated by the Legal Practitioners Investigating Panel and referred to it by the Panel.
By this arrangement there was no question of overlapping of duties to bring about the situation created in the present proceedings in which the complaint is that the same people are the accusers and the judges all rolled into one.
But the Legal Practitioners Investigating Panel was abolished under the 1975 Act leaving the L.P.D.C. with the task of considering and determining the case, with the Chairman of the very L.P.D.C. – the Attorney-General of the Federation – initiating the proceedings, as was done in the instant appeal, by the letter to the Respondent (Exhibit C) and the charges preferred in Exhibit D1. Both the letter (Ex. C)and the charge sheet (Ex. D1) were signed by Mrs. O. O. Fatunde, an officer in the Attorney-General’s Office who, in signing the charge sheet (Ex. D1) described herself as the “Prosecutor”.
And so, we arrived at the situation in which the Attorney-General of the Federation (then Chief Richard Akinjide), acting through his staff, received the complaint of the alleged misconduct, drafted the charges as the “Prosecutor” and got himself to sit as the judge; indeed, sat as the judge on Monday 25th January 1982 in the Conference Room of the Nigerian Law School, Victoria Island, Lagos, (see Gani’s affidavit sworn to on 26th January 1962) on which date he adjourned the trial to 22nd February 1982; and would have continued sitting and adjudicating on the matter on the said 22nd February 1982 had his proceedings not been arrested by the order nisi of prohibition of the High Court made on 27th January 1982. He would have been the accuser and the judge at the same time. Such a proceeding would obviously have been null and void on that score as being an infringement of the principle nemo judex in causa sua.
That principle was recently well articulated in England in a case in which the conduct of a Barrister was called in question. It is IN RE S. (A. BARRISTER) (1981)3 W.L.R. 129. In that case the General Council of the Bar became part of the Senate of the Inns of Court and Bar in 1974 but the Regulations of the Senate provided for it to operate independently in carrying out its duties, One of its Committees was the Professional Conduct Committee which had power to co-opt lay members and in practice always coopted at least one. The committee’s functions included the duty to prefer and prosecute disciplinary charges against members of the Bar before the Disciplinary Tribunal. The Disciplinary Tribunal acted on behalf of the Senate and was composed of five members: a judge of the High Court, a lay representative and three practising barristers including a member of the Inn of the Barrister charged. Such a disciplinary tribunal found proved charges of professional misconduct against the appellant, a barrister and a member of the Inner Temple and ordered that he be disbarred and expelled from his Inn. On an appeal by the Barrister, heard by three High Court Judges sitting as visitors to the Inner Temple, on the contention that the constitution of the Disciplinary Tribunal infringed the principle nemo judex in causa sua because the tribunal’s members included members of the Senate which had brought the charges and the majority of the tribunal members were Barristers, the appeal was dismissed because the General Council of the Bar, although part of the Senate, acted as an autonomous body for the purposes of its separate powers and duties and under the Regulations, a member of its Professional Conduct Committee was precluded from being a member of the Disciplinary Tribunal since the Regulations ensured that those who were responsible for investigation and prosecuting a complaint of misconduct did not adjudicate on the hearing of the complaint.
In England therefore, the existence of two separate bodies, namely
(i) the Disciplinary Committee
(ii) the Professional Conduct Committee whose functions included the duty of preferring and prosecuting disciplinary charges before the Disciplinary Tribunal of the General Council of the Bar made for such a separation of duties that the danger of violating that principle of natural justice would not readily arise.
It will be recalled, as stated earlier in this judgment, that the Respondent was not given the chance by the Attorney-General to answer the letter, Exhibit C, which brought the complaint about the Respondent’s conduct to his notice. Up to this date, Gani has not stated whether or not he inserted the advertisement complained of in the “WEST AFRICA” magazine. Unless the Attorney-General, Chief Richard Akinjide, had received word from the publishers of “West Africa” that it was the Respondent who inserted the advert, he must be deemed to have unreasonably assumed that the Respondent inserted the advert. Not to have allowed Gani to make any explanation before preferring charges, would have been presumptuous of the Attorney General.
One would have thought that an Attorney-General who by his training as a lawyer, and his position as Attorney-General, would have been endowed with a sharper instinct of the notions of natural justice than most others, would have accorded a colleague whose conduct was being pilloried, that elementary justice of hearing out his explanation, before proceeding to prefer charges and conducting his trial. The rule: audi alteram partem, runs as a principle inviolate through the blood of every lawyer. In LAW v. CHARTERED INSTITUTE OF PATENT AGENTS (1919)2 CH. D 276 it was held, inter alia, that a person who has a judicial duty to perform is disqualified from performing it if he has a bias which renders him otherwise than an impartial judge, or if he has so conducted himself in relation to the matters to be investigated as to lead a reasonable man to suspect that he may have such a bias.
A review of other decided cases in this country demonstrates the universality of the principle that in deciding matters which affect the rights of individuals, the rules of natural justice must be obeyed and adhered to. SALAWU OYELADE v. ARAOYE & ANR.(1967)1 All N.L.R. 321 established among other things that where the facts show a real likelihood of bias, even if unconscious, that is enough to hold that the rights determined have not been determined by a tribunal constituted in such a manner as to ensure its independence and impartiality. ANJOKU and Anor. v. NNAMANI (1953) 14 W.A.C.A. 357 concluded that an administrative officer conducting an inquiry under the Inter-Tribal Boundaries Settlement Law was a judicial tribunal subject to the incidents of natural justice. While holding in DR. DENLOYE v. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 All N.L.R. 306 that the Medical and Dental Practitioners Disciplinary Tribunal was entitled to decide its procedure and lay down its own rules for the conduct of enquiries regarding discipline, the Supreme Court was emphatic that it was of “utmost importance” that the inquiry be conducted in accordance with the principles of natural justice. Therefore the withholding in that case of part of the evidence led, from the Doctor whose conduct was being questioned, was a flagrant violation of that principle.
Respondent cited a number of other cases to illustrate the same principle of bias or likelihood of bias including LEESON v. GENERAL COUNCIL OF MEDICAL EDUCATION AND REGISTRA TION (1890) 43 Ch.D 366 (which was discussed and approved by this Court in DEDUWA v. OKORODUDU (supra); COOPER v. WILSON (1937)2 ALL E.R. 726 dealing with the dismissal of a police sergeant in the Liverpool city police force; and LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM 4 E.H.R.R.1 which discussed in the European Court of Human Rights, the suspension of the three doctors, from practising medicine in Belgium, by a disciplinary tribunal of the Belgian Ordre des medecins. But perhaps the nearest of those foreign cases for our purposes in this appeal are the Court of Appeal decision in RE GODDEN (1971)3 All E.R. 20 and the Hong Kong High Court case of WONG PUN CHEUK v. MEDICAL COUNCIL OF HONG KONG AND THE ATTORNEY-GENERAL (1964) The Hong Kong Law Reports (Part IV) 47. The most proximate, however, is RE GODDEN a cause dealing with either actual bias or with a real likelihood of bias. It concerned a Chief Inspector of Police of the Kent Police Force who by reason of his behaviour, it was arranged for him to see a Dr. B. who after interviewing him and reading a medical report earlier written by another doctor, said that he formed the opinion that the applicant was suffering from a mental disorder of paranoid type. When it was decided to take formal proceedings under regulation 73 of the Police Pensions Regulations (1971) which would require a Doctor’s report, the matter was referred to the same Dr. B. But the Chief Inspector refused to go to him whereupon the police authority decided to make their assessment of his disablement on such evidence and medical advice as they thought fit. The Chief Inspector applied for an order of Prohibition, prohibiting Dr. B, from determining whether he was permanently disabled and an order of Mandamus against the Kent Police Authority.
It was held that the decision of the selected medical practitioner on the questions referred to him “was a decision of judicial character” and must conform to the rules of natural justice and that an order of Prohibition would go to Dr. B. prohibiting him from determining the questions because he had already in his earlier report
“formed an opinion adverse to the applicant and had thus committed himself to a view in advance of an inquiry…..he could not therefore bring, or in any event appear to the applicant to bring, an impartial judgment to bear on the questions referred to him; accordingly Dr. B. was disqualified from taking on the matter”
In the instant appeal, Chief Richard Akinjide, by reason of the way he handled the Respondent’s matter was in like, although not exact, position as Dr. B. in Re Godden (supra). He had not, like Dr. B., earlier written out a judgment in Gani’s case, but his behaviour seemed to portray him as having arrived at a conclusion on the guilt of the Respondent, Gani, thus rendering him unfit to sit again, in judgment over the case, in the Legal Practitioners Disciplinary Committee.
The judgment of the Court of Appeal raised the issue whether the entire legal Practitioners Disciplinary Committee would be barred by the orderof Prohibition or whether the restriction would be limited to the Attorney-General, Chief Richard Akinjide, SAN, and the three other members who were alleged to have actively participated with him in investigating the matter, namely. Adetunji Fadayiro, Mr. D.C.O. Njemanze and Mr. Idowu Sofola. I am clearly in agreement with the Court of Appeal that for the reasons given by that Court, prohibition order must be restricted to the Attorney-General, Chief Richard Akinjide, SAN., and the above three named members of the Bar. To hold that the Disciplinary Committee, qua Committee, is barred from sitting over Gani’s matter, is, in effect to make it impossible for the Disciplinary Committee to exercise any disciplinary authority over him in this matter.
That is certainly not the intention. It will, however not be difficult to empanel a Committee whose members would have had no hand in investigating the charges brought against Gani and who would bring to the deliberations fresh, open and uncommitted minds.
In the result, this appeal by the Legal Practitioners Disciplinary Tribunal must fail, and hereby fails. The judgment of the Court of Appeal is hereby affirmed and the order it made hereby confirmed. The Respondent is entitled to the costs of this appeal which are hereby assessed at N300.00
A. G. IRIKEFE, J.S.C.: The facts giving rise to this case have been set out with precision by my learned brother ANIAGOLU, J.S.C. The issues of law were gone into with equal thoroughness by my learned brother aforesaid, who had before now, made available to me a draft of the judgment.
I am satisfied that all issues arising for a determination have been adequately dealt with in the lead judgment and I also would dismiss this appeal and hereby do so with costs as assessed in the lead judgment.
A. O. OBASEKI, J.S.C.: The issue for determination in this appeal has been narrowed down by Chief F.R.A. Williams, SAN. when in the appellant’s brief and in Court he said and conceded that:
“The appellant does not dispute that if in the con of the Legal Practitioners’ Act, the legal Practitioners’ Disciplinary Committee is a “court or tribunal” as envisaged under section 33 of the Constitution, then, as constituted at all times material to this appeal, it ought to be prohibited from adjudicating on the complaint and charges against the respondent”
This concession is reflected in the question for determination formulated by learned counsel for the appellant in his brief which reads:
“whether in the con of the Legal Practitioners Act, the Legal Practitioners Disciplinary Committee is a “court or tribunal” as envisaged by section 33(1) of the Constitution of the Federal Republic of Nigeria or whether it is no more than an administering authority of the type envisaged under section 33(2) thereof”
The respondent formulated the question of issue for determination slightly differently. According to him:
“The only issue raised by the appellant is whether the legal Practitioners Disciplinary Committee is bound to observe the principles of natural justice or put more clearly, whether the Legal Practitioners Disciplinary Committee is bound by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979”.
The issue in its two formulations has been given detailed consideration in the judgment just delivered by my learned brother, Aniagolu, JSC. the draft of which I had the privilege of reading in advance. I agree with him and I adopt his opinions as mine. However, a few comments of mine is desirable if nothing else, to give added weight and emphasis to those opinions.
The real motivation for the application of the respondent to the High Court, Lagos, Johnson, J. for the protection and enforcement of his fundamental right was the genuine fears that the Legal Practitioners Disciplinary Committee would sit to hear the charge against him in breach of section
33(1) of the Constitution of the Federal Republic of Nigeria 1979. This is disclosed clearly in the facts of the case.
The Attorney-General’s (Chief R.O. Akinjide’s) officers in the Ministry of Justice had served on the respondent a letter written on his direction asking for an explanation of his conduct of causing an advertisement to be inserted in the weekly magazine titled West Africa. Before the time given him, i.e. 14 days in which to furnish an explanation a charge was preferred against him by the direction of the Attorney-General on which he was to be tried by the Legal Practitioners Disciplinary Committee. When he did appear before the Legal Practitioners Disciplinary Committee, sitting as Chairman was the Attorney-General, Chief R.O. Akinjide with other members sitting on either side. Several questions immediately came to mind. They are:
(1) Is the Legal Practitioners Disciplinary Committee as constituted an independent and impartial tribunal
(2) Is the Legal Practitioners Disciplinary Committee a tribunal under section 33(1) of the Constitution of the Federal Republic of Nigeria
(3) Is the Legal Practitioners Disciplinary Committee an administering authority or body or tribunal protected by section 33 (2) of the Constitution of the Federal Republic of Nigeria 1979
(4) Is Chief R.O. Akinjide disqualified from sitting as a member of the Disciplinary Committee
(5) Is the Legal Practitioners Disciplinary Committee bound to observe the rules of natural justice
The Legal Practitioners Disciplinary Committee is a creature of the Legal Practitioners Decree No.15 of 1975 [See section 9(1)] and its membership consists of (a) the Attorney-General of the Federation as Chairman; (b)the Attorney-General of the States in the Federation; and (c) twelve legal practitioners of no less than ten years standing appointed by the Benchers on the nomination of Association [see Section 9(2)]. The quorum shall be 5, three of whom are the Attorneys-General including the Attorney-General of the Federation [see schedule 2 to the Decree paragraph 1].
The Attorney-General of the Federation or of a State, may, if he thinks fit, direct the Solicitor-General of the Federation or, as the case may be, of the state to act in its place as a member of the disciplinary committee [see 2nd schedule paragraph 5 to the Decree].
The Legal Practitioners Disciplinary Committee hereinafter referred to as Disciplinary Committee is –
“charged with the duty of considering and determining any case where it is alleged that a person whose name is on the role has misbehaved in his capacity as a legal practitioner or should for any other reason be subject of proceedings under this Decree [section 9(1)].
In short, its duty is to consider and determine any case charging a legal practitioners with misbehaviour, i.e. breach of code of conduct for legal practitioners. Its duty is purely adjudicative and it has powers to inflict penalties for professional conduct [see section 10(1)]. It is not a retrial investigator and its members cannot, in my view, carry out a pretrial investigation and sit to adjudicate. This is what the learned Attorney-General of the Federation set out to do by the issue of the letter to the respondent. where –
- a person whose name is on the roll of Legal Practitioners is judged by the disciplinary committee to be guilty or of infamous conduct;
- a person whose name is on the role is convicted by any court in Nigeria having power to award imprisonment of an offence which is incompatible with the status of a legal practitioner; or
- the disciplinary committee is satisfied that the name of any person has been fraudulently enrolled;
the disciplinary committee may, if it thinks fit, give a direction-
(a) ordering the registrar to strike that person’s name off the roll; and
(b) suspending that person from practice as a legal practitioner for such period as may be specified in the direction; or
(c) admonishing him.
The direction is equivalent to sentence passed by a court of law after conviction or a finding of guilt. [section 10 (1)]. Even the Supreme Court, acting under section 12 gives such a direction as is mentioned under subsection 10. (See section 12)
The Decree gives legal practitioners a right of appeal first to the Appeal Committee and from there to the Supreme Court.
In the case of the exercise of the right of appeal, the Disciplinary Committee is deemed to be a party to the appeal before the Appeal Committee of the Body of Benchers [section 10(7)] and the Appeal Committee is deemed to be a party to the appeal before the Supreme Court. It is this provision of the law that learned counsel for the appellants has urged in support of his submission that the Legal Practitioners Disciplinary Committee is an administering body.
The short answer is that it is the Decree that deemed the disciplinary committee to be a party to the appeal before the appeal committee and not because it is an administering body. It could however be suggested that it would be neater if the Decree makes provision for a neutral person who will be a party to the proceedings before the disciplinary committee, the appeal committee and the Supreme Court.
From the consideration of the various sections of the Decree, set out above, I find myself holding strongly to the view that the Disciplinary Committee is a tribunal when exercising its adjudicative duties. My view is also founded on the fact that by paragraph 2(1) of schedule 2 to the Decree, the Chief Justice of Nigeria is empowered to make rules for the purposes of any proceedings and as to the procedure to be followed and rules of evidence to be observed in proceedings before the disciplinary committee. The rules are to make provisions inter alia:
(a) for securing that notice of the proceedings shall be given, at such time and in such manner as may be specified by the rules to the person against whom the proceedings are brought.
(b) for determining who in addition to the person aforesaid, shall be a party to the proceedings;
(c) for securing a party to the proceedings to be represented by a legal practitioner;
(d) for enabling a party to the proceedings to be represented by a legal practitioner;
(e) subject to the provisions of subsection 7 of section 10 of this Decree, as to the costs of proceedings before the disciplinary committee. [see paragraph 2(2)(a, b, c, d, e) of schedule 2 to the Decree].
With all these trappings, the disciplinary committee is not a Court, it is a tribunal within the con of section 33(1; of the Constitution of the Federal Republic of Nigeria 1979 which reads:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
By the relevant provisions of the Legal Practitioners Act or Decree 1975 as amended, (section 9 and Schedule 2) the independence and impartiality of the tribunal is secured but if any of its members in any particular case is tainted with bias and instead of declining to sit insists on sitting along with other members; of the committee to adjudicate, then, the disciplinary committee will lose its impartiality as constituted and sit in breach of one of the rules of natural justice. Even if section 33(1) of the 1979 Constitution had not made entitlement to fair hearing as a fundamental right, it is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties rights and duties, if the statute is silent on the question, the courts will imply into the statutory provision a rule that the principles of natural justice should be applied [see Wiseman v. Borneman (1971) AC 297 at 310-311 per Lord Guest].
I am unable to accept the contention of the learned counsel for the appellant that the Disciplinary Committee is not entrusted with a final decision in any proceeding before it. I think it is and even if it is not, I share the view of Lord Guest when he said in Wiseman v. Borneman (supra).
“I can see no reason why, if the principles of natural justice have to be applied to a tribunal entrusted with a final decision, the same should not be true of a tribunal which has to decide a preliminary point which may affect the parties rights”
Having held that the Disciplinary Committee is a tribunal within the con of section 33(1) of the 1979 Constitution as amended, I hold that it must be constituted in such a way as to secure its independence and impartiality.
The appellant has not contested the facts found by the learned trial judge and since the narrow issue taken up has, in my view, been resolved against the appellant, the appeal must fail. The three important findings made by the learned trial judge are:
“(1) That the view of the Ministry of Justice contained in its letter of 1st December, 1981 – Exhibit C portrays a conclusion that the alleged conduct of the applicant constituted an offence under the appropriate rules, sufficient to justify reference of the matter to the Disciplinary Committee and it was so referred.
(2) The applicant was supposed to have been given 14 days within which to show cause by way of written explanation why the matter should not be referred to the Disciplinary Committee. There would appear to be an unfortunable haste on the part of the Federal Ministry of Justice in referring the matter to the Disciplinary Committee by the letter Exhibit D and the framing of the charges and statement of complaint against the applicant by Exhibit D2 and D3 without waiting for 14 days allowed the applicant to expire. In fact, it is pertinent to note that the charges were framed two days after Exhibit ‘C’ was written and dated the 1st December, 1981. The Complainant by this act robbed itself of the opportunity and a very important one at that, of being able to assess and determine whether or not the explanation of the applicant justifies a reference of the complaint to the Disciplinary Committee.
(3) All these facts and circumstances are sufficiently capable of I creating fear and suspicion in the mind of the applicant as to the question of a fair trial”
These findings are, in my view, fatal to the appellant’s contention.
Impartiality in the adjudicatory process is a sine qua non to a fair hearing. In the instant appeal, it is this requirement that the respondent complains will be absent from the Disciplinary Committee if the present membership which includes Chief R. O. Akinjide, the Attorney-General of the Federation and members of the National Executive Committee of the Nigerian Bar Association is allowed to stand.
Brett, Ag. C.J.N. said in Obadare and others v. President, Ibadan West District Grade Customary Court (1964) 1 All NLR 336 at 344 that:
“The principle that a “judge must be impartial” is accepted in the jurisdiction of any civilised country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decision”
See also Deduwa v. Okorodudu (1976 NMLR 236. In Kujore & Ors. v. Otubanjo (1974) 10 SC.173 at 181, the Supreme Court per Fatayi-Williams, JSC, (as he then was) dealing with a similar situation as the instant appeal, observed that no further proof of likelihood of bias was necessary since any person in the complainant’s position ‘would undoubtedly conclude that the President would not be impartial and would likely be biased against him’.
The previous knowledge of the facts and issues to be determined in a case may raise a real likelihood of bias. In Oyelade v. Araoye & Attorney-General of Western Nigeria (1968) NMLR.44 at 47, Brett, JSC. said:
“There can only be one standard of impartiality for persons called to discharge judicial functions whether as full time judges or in special occasions. An officer conducting an enquiry under the inter-tribal Boundary Settlement Law may not be bound by the Evidence Act and may be entitled to give weight to matters which would not be treated as relevant in a court of law but if he is to give a judicial decision, he must approach the enquiry with an open mind, he ought not to presume in advance that any particular solution is the right one”
See also R. V. Kent Police Authority and Others ex parte Godden (1971) 2 QBD 668, 669 and 670. In that case on the question whether it was proper for the authority to refer the issue for decision to the same Chief Medical Officer, Dr. Crosbie Brown, Lord Denning, the Master of the Rolls, answered in the negative since the doctor had already expressed an opinion adverse to the applicant and committed himself in advance. Chief R.O. Akinjide and members of the National Executive of the Nigerian Bar Association cannot play the role of prosecutors and adjudicators at the same time. See
Kanda v. Government of Malaya (1962) AC 322
State Civil Service Commission v. Buzugbe (1984) 7 SC.19
For the above reasons and those in the judgment of my learned brother, Aniagolu, JSC., I would and I hereby dismiss the appeal with N300.00 to the respondent.
K. ESO, J.S.C.: In a weekly newspaper called the “WEST AFRICA” was all publication dated 23rd March 1981. The publication which is an advertisement for a book on the Nigerian Constitution written by the Respondent Chief Gani Fawehinmi reads as follows:-
“A New Book on Nigerian Constitution,
Titled: NIGERIAN CONSTITUTIONAL LAW
REPORTS’ 1981 Volume One
Chief GANI FAWEHINMI
the famous, reputable and controversial Nigerian Lawyer….”
I have italicized the last few words for emphasis).
These last emphasised words were charged as misconduct on the part of the publisher Gani Fawehinmi in that they constituted “advertising, touting and publicity which a legal practitioner should not be engaged in!
Now Gani Fawehinmi, is a legal practitioner, a Solicitor and Advocate of the Supreme Court of Nigeria and therefore he is subject to discipline by the Legal Practitioners’ Disciplinary Committee under the Legal Practitioners Decree 1975 No.15. The appellants that is-the Legal Practitioners’ Disciplinary Committee could only take proceedings of discipline against legal Practitioners under that Decree.
What are the facts in this case apart from the publication which I had referred to, in the magazine – West Africa There was a letter from the Solicitor General of the Federation and Permanent Secretary Federal Ministry of Justice. The contents of that letter have been reproduced in the lucid judgment of my learned brother Aniagolu J.S.C. The letter expressed the view of the Ministry of Justice that the Respondent’s conduct offended against the Rules of Professional Conduct which prohibits Advertising, Touting and Publicity. Gani Fawehinmi was given fourteen days within which to explain why the matter should not be referred to the Legal Practitioners Disciplinary Committee for appropriate action. It should be noted at this stage that it was the Ministry of Justice under the portfolio of the Attorney General that had formed this opinion and indeed it was when the view of the Attorney General was drawn to this that the letter which had threatened reference to the Disciplinary Committee was written. This letter was dated 1st December 1981. And though Gani Fawehinmi had, by that letter fourteen days within which to explain his action, precisely two days later, the writer of the first letter Mrs. Fatunde who wrote on behalf of the Solicitor General, sent a notice of hearing of the charges now drawn up and signed by the same Mrs. Fatunde, on behalf of the Solicitor General to Gani Fawehinmi and definitely without hearing the explanation of Gani Fawehinmi or giving him the opportunity the Ministry of Justice earlier granted him.
Though my learned brother had set out these charges in his judgment, because of the Constitutional importance of this case, which is the only reason why I am adding my views to the judgment of my learned brother, I will set out the charges.
They are as follows-
That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the roll of Legal Practitioners in Nigeria, on or about the 23rd of March, 1981 at Lagos, did commercially advertise the importance of your position as a lawyer in Nigeria at page 621 of periodical called “West Africa” of 23rd March 1981 issue by describing yourself as ‘the famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 33 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a Legal Practitioner within the intentment of Section 9(1) of the Legal Practitioners Act 1975 (No. 15) and therefore liable to be disciplined in accordance with the provisions of Section 10(1)(a) of the Legal Practitioners Act 1975.
That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the Roll of Legal Practitioners in Nigeria, on or about the 23rd of March 1981, at Lagos, caused or permitted to be published the importance of your position as a lawyer in Nigeria at page 621 of the periodical called ‘West Africa’ of 23rd March 1981 issue by describing yourself as ‘the famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a legal practitioner within the intentment of Section 9(1) of the Legal Practitioners Act 1975 (No. 15) and therefore liable to be disciplined in accordance with the provisions of Section 10(1) (a) of the Legal Practitioners Act 1975.
O. O. Fatunde (Mrs.)
Dated this 3rd day of December, 1981.
Addressed for service:
Chief Gani O. Fawehinmi,
28, Sabiu-Ajose Crescent,
(Behind Adeniran Ogunsanya Shopping Centre.)”
The only clumsy sequence in the whole drama is the fact that though the letter from the Solicitor General dated 1st December 1981. would ex facie appear to have set the whole incident in motion, the evidence as per the affidavit of Mr. Fadayiro who was at that time the National President of the Bar Association was to the effect that as far back as April 24 1981 the matter had come for debate before the National Executive of the Bar Association. It is of interest though not much legal significance to my conclusion in this case that the present Attorney General Mr. Chike Ofodile S.A.N. was present though not at that time as the Attorney General of the Federation. Obviously, it was as a result of the report made by the National Executive of the Bar Association to the Attorney General, Richard Akinjide, that prompted the letter of 1st December which allowed Gani Fawehinmi 14 days to give his own side though the Attorney General thought (obviously too) two days later that his side should not be heard. It was a case of noli audi – alteram partem ante condemnation. And so the matter was placed before the Legal Practitioners Disciplinary Committee for determination with Akinjide the Attorney General that had hitherto been referred to in the prosecution of the matter as Chairman.
Gani Fawehinmi reacted, and very quickly too, with an application albeitex parte to the High Court of Lagos to prohibit the Legal Practitioners Committee from considering and determining the complaint and charges made against him. He based his application under section 42(3) of the Constitution of the Federal Republic of Nigeria 1979 and sought for the enforcement of his fundamental right under section 33 of the Constitution. On 27th January 1982, Candido Johnson J. as he then was, directed the Legal Practitioners Committee, after hearing this application, to stay further proceedings in respect of the charges against Gani Fawehinmi.
The matter was later fully argued before the Judge (Candido Johnson J.) and in a well considered judgment, after dealing in extenso with what he referred to as the twin policy supporting natural justice, that is, nemo judex in causa sua and audi alteram parte, finally made an order prohibiting the Committee “as it is constituted” he said, from adjudicating on the charges framed against the applicant.
Of course, the Committee appealed to the Court of Appeal. Learned counsel for the Committee in that Court, Chief F.R.A. Williams S.A.N., who incidentally was also the counsel for the Committee in the High Court, stated what he considered to be the real question in the appeal to be a determination whether the provisions of section 33 of the Constitution embodying the rules of natural justice have been or were likely to be violated. Gani Fawehinmi’s contention was not to challenge the provisions of the Legal Practitioners Act but the membership and a fortiori the Chairmanship of Akinjide in the Committee.
The Court of Appeal (Nasir P., Kazeem, Nnaemeka-Agu, Uthman Mohammed and Kutigi JJ.C.A.) again in a well considered judgment, dismissed the appeal of the Committee and Richard Akinjide (as -Attorney General of the Federation) and three members of the Committee were prohibited from taking part in any future proceedings as members of the Disciplinary Committee for the charges which had been framed against the Legal Practitioner Gani Fawehinmi. These briefly are the facts but the facts have been more fully set down in the judgment of my learned brother Aniagolu J.S.C.
Now, in this Court, the Committee has appealed on what their learned counsel, again Chief F.R.A. Williams S.A.N , has stated as question for determination. It is:-
“Whether in the con of the Legal Practitioners Act, the Legal Practitioners Disciplinary Committee is “a court or tribunal” as envisaged under s.33(1) of the Constitution of the Federal Republic of Nigeria or whether it is no more than an administering authority of the type envisaged under s.33(2) thereof”
In a major concession in his brief, Chief Williams said, and he had always maintained this, that if in the con of the Legal Practitioners Act, the Legal Practitioners Committee is a “Court or Tribunal” as envisaged under s.33 of the Constitution, then as constituted at all times material to this appeal the Committee ought to be prohibited from adjudicating on the complaint and charges against the Respondent Gani Fawehinmi. I think this is a very fair plank for the basis of the appeal.
In the submission of learned counsel the Disciplinary Committee is no more than an administering authority of the type envisaged under s.33(2) of the Constitution.
I think the crux of this matter must be in the meaning of “court or tribunal” under s.33 of the Constitution in so far as the Legal Practitioners Act 1975 is concerned. Is the Legal Practitioners Disciplinary Committee a “court or tribunal” or it is only the Appeal Committee of the Body of Benchers that is the court or tribunal. Chief Williams has argued, very forcefully too, that all the Appellant Committee does under the Act is to give a direction which does not take effect until after the expiration of the time limited for appealing against it. If no appeal is brought at the expiration of the time, the direction becomes effective. If however an appeal is brought against the direction then such direction would be effective if and only if the appeal is dismissed or withdrawn.
This, no doubt is an ingenious argument. But for a proper determination of the issues raised, the Legal Practitioners Act must be thoroughly examined. Sections 9 and 10of the Act establish the Disciplinary Committee and give it its functions. The provisions of these sections need not be set out in this judgment as there is easy access to the Act itself.
There is also, under the Act, constituted the Appeal Committee of the Body of Benchers and the constitution and functions are to be found in s.11 of the Act. The section also for the same reason needs not be set out in this judgment, more especially as there is already a lead judgment and this is just a judgment in concurrence.
A third organ is the Supreme Court which is referred to under subsection (5) of section 11 and the powers of which are fully set out in section 12 in so far as disciplinary measures are concerned.
Now to determine whether any or all these three organs qualify for “court or tribunal” my learned brother Aniagolu, J.S.C. would in my respectful view appear to have made a painstaking examination of this and I do not intend to duplicate his effort. Suffice it to say in addition that, with respect, I cannot subscribe to the argument that the direction given by the Legal Practitioners Disciplinary Committee being in abeyance until the expiration of an appeal period would not invoke the provisions of s. 33 of the Constitution which is a mere codification of the age-long principle of natural justice to wit – no one should be a judge in his own cause and also hearing the
other side before determination of a lis.
It is patent from the action of the Attorney-General in this case that he is not only a judge in his own cause – in effect he is complainant, prosecutor and judge – but also heavily biased against the respondent whom, though he allowed fourteen days to state his case, he also prevented him from so doing with so much swiftness that it would leave no one in doubt of his bias. Not less are the three members of the Bar Association who having condemned the respondent at their earlier Bar Executive would now sit in judgment over him. It is a case of “come here quickly for your assured condemnation” This court in Deduwa v. Okorodudu SC. (1976) NMLR. 236 had frowned heavily on bias or likelihood of bias. See also Anjoku v. Nnamani 14 WACA. 357.
What then vests judicial powers in a statutory body First there are statutory bodies that go by a generic name “Tribunal” A tribunal is not necessarily a court of law stricto sensu but it has been a practice in common law countries to create independent statutory tribunals whose function is judicial. They are often called administrative tribunals but then they have judicial powers as they perform judicial or quasi judicial functions. The reasons for the creation of this type of tribunals might be stated positively as showing a greater suitability of such tribunals because of their expertise or if stated negatively, it reveals the inadequacy of the ordinary courts to cope with the varied challenges. They are cheaper and more speedy in their approach. They are more flexible and more informal than ordinary courts.
To go back to the investigation of an erring barrister, in England the Masters of the Bench of each of the four Inns of Court have a customary jurisdiction which has been delegated by the judges to disbar members of their Inn for professional misconduct.
In 1974 a joint body which represented the Inns of Court and the Bar was set up and that body now exercises the jurisdiction of discipline of a member of the Inns. Appeal lies from the decision of this body to the Lord Chancellor and the Judges of the High Court. Those judges who would have sat over the issue as Benchers do not as a matter of practice hear the appeal. See In re S. (A Barrister) (1970) 1 QB. 160. See also Re Yankson in the Time’s Report of January 14, 1971.
In Nigeria, there are three tiers but we are concerned in this appeal with the first tier and that is the stage of the involvement of the Appellant Committee. This, Chief Williams, has submitted is predominantly an administering authority which has no obligation to observe the norms of natural justice even if in the discharge of its duties it has to make a judicial or quasi-judicial decision. It is not easy to place a tribunal in the compartments of purely administering, predominantly administering or one with judicial or quasi judicial function. In my view, a purely administrative tribunal may turn judicial once it embarks on judicial or quasi judicial adventure. The test to my mind should be the function the tribunal performs at a particular time. During the period of in-course into judicial or quasi judicial function, an administrative body must be bound in process thereof to observe the principles that govern exercise of judicial function. “Even God himself did not pass sentence upon Adam before he was called upon to make his defence” See Dr. Bentley’s case in R. v. Chancellor of Cambridge University (1716) 1 Str. 557. In Ridge v. Baldwin (1964) A.C. Lord Reid was of the opinion, which opinion I share, that merely to describe a statutory function as administrative, judicial or quasi judicial is not by itself sufficient to settle the requirements of natural justice. This certainly leaves it open for the court to go into the substance of the very act of the tribunal rather than the form of description.
Nothing could be worse than the instant case in seeking an example of breach of natural justice. The accusers are not just merely the judges but they are in fact impatient accuser judges; and undisguisedly so. The Hong Kong case of Wong Pun Cheuk v. Medical Council of Hong Kong and the Attorney-General of Hong Kong Law Reports Part IV Oct-December, 1964 to which the respondent drew our attention is apt. There the Medical Director referred the case of a medical practitioner to the Medical Council and the Medical Director then went and sat as the Chairman of the tribunal to decide the complaint made by himself. The Hong Kong court declared the action of the tribunal against the principles of natural justice as I will also in agreement with my learned brother Aniagolu, J.S.C. agreeing with the reasons which he had so much in detail put across, hold the action of the appellant in this case to be in offence of the clear and age-long principles of natural justice.
With the involvement of the Ministry of Justice as it is in this case I cannot see how the case against the respondent could ever rightly go on if the Attorney-General, not particularly Akinjide, remains the Chairman of the Legal Practitioners Disciplinary Committee as provided for by section 9(2) of the Legal Practitioners Act. I agree with the order made by my brother Aniagolu, J.S.C.
Other Citation: (1985) LCN/2253(SC)