Olufemi Adebayo Jaiyesinmi V. Institute Of Chartered Accountants Of Nigeria (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Decision of the Accountants Disciplinary Tribunal delivered on the 1st December, 2006, which found the Appellant guilty of two counts of professional Misconduct and infamous conduct and subsequently suspended him from membership of the institute for six month (the decision of the tribunal is at pages 127 to 133 of the Record of Appeal).

Dissatisfied with the decision of the tribunal, the Appellant filed a Notice of Appeal on 29th December, 2006, containing 3 Grounds of Appeal. (The Notice of Appeal is at pages 134 to 136 of the Record of Appeal).

The charge against the Appellant arose out of a complaint against the Appellant and a 3rd party by one Mrs. Esther Babatunde Managing partner of Olufunmi Niniowo Esq. Co. (Chartered Accountants) alleging that the Appellant was practicing in the name of Olufunmi Niniowo Esq Co. without her authority. (The charge is at pages 134 to 136 of the Record of Appeal.)

The Appellant was invited and attended an investigative panel, of the Institute of Chartered Accountants. The investigative panel after hearing the complainant and the Appellant recommended them as well as the 3rd party for trial before the Disciplinary Tribunal at the institute (The proceedings of the Investigative Panel is at pages 1 to 28 of the Record of Appeal).

The Disciplinary Tribunal, with its changing composition started sitting on 5th January, 2001 from date to date and finally entered judgment on the 1st December, 2006 suspending the Appellant for six months, on Counts 3 and 4. Dissatisfied with this decision, the Appellant has appealed to this court From the 3 Grounds contained in the Notice of Appeal, the Appellant distilled the following two(2) issues for the determination of this appeal as follows:-

(1) Whether Counts 3 and 4 upon which the Appellant was convicted were properly before the tribunal and valid in law? (Ground 7 of the Notice of Appeal).

(2) Whether the facts before the Tribunal justified a finding of guilt against the Appellant on counts 3 and 4? (Grounds 2 and 3 of the Notice of Appeal).

On the other hand the Respondent adopts the issues as framed by the Appellants above.

Issue ONE

In arguing his issue No. 1, Badejo SAN, Learned Counsel to the Appellant submitted that, the complainant in this case, Mrs. E.O. Babatunde lodged a complaint, vide Exhibit “JA1”, against the Appellant alleging specifically that the Appellant and a 3rd party had been “posing as partners of her firm, obtaining audit and tax consulting service jobs and performing such jobs by using photocopies of the firm’s letter head without authority to carry out their assignments and submitting same to the Federal Board of Inland Revenue Department and possibly to the Corporate Affairs Commission.”

Learned Counsel submitted further that the investigative panel found clearly that their allegations were baseless and that, the Appellant had indeed not only obtained the consent of the complainant, but had infact, shared the remuneration accruing therefrom with the complainant. However, the panel proceeded to recommend the Appellant, the complainant and the third party for trial before the Tribunal on the grounds that they prepared the audited accounts while they (The Appellant and the third party) were in full employment with the firm of Ayorinde Thomas Esq. Co. which was clearly beyond the complaint before the Panel.

Learned Counsel submitted further that, these counts in the charge were clearly beyond the mandate of the panel and contravenes the provisions of Section 11(3)(a) of the Institute of Chartered Accountants of Nigeria Act.

Learned Counsel further submitted that, the panel which is an integral part or “body” of the Institute cannot be, the complainant, prosecutor and judge in its own cause. This offends the principles of fair hearing enshrined in section 36(2) of the 1999 Constitution and captured in the maxim nemo judex in Causa Sua. See:- L. PIDC VS. FAWEHINMI (1985) 2 NWLR (pt 7) 3000.