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Ndukwe v LPDC [2007] – SC

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➥ CASE SUMMARY OF:
Ndukwe v The Legal Practitioners Disciplinary Committee and Another (LPDC) [2007] – SC

by “PipAr” B.C. Chima

➥ COURT:
Supreme Court – SC 48/2003

➥ JUDGEMENT DELIVERED ON:
Friday, the 9th day of February 2007

➥ AREA(S) OF LAW
Professional misconduct;
Withholding of clients money;
Charging a professional.

➥ NOTABLE DICTA
⦿ APPELLATE COURT WILL NOT UPSET FINDING OF FACT MADE BY TRIAL COURT UNLESS
The law remains that an Appellate Court is reluctant to upset a finding of fact made by a trial court which had the opportunity of listening to witnesses testify and observing their demeanour and that evaluation of evidence and the ascription of probative value thereto are the primary functions of a trial court which saw, heard and assessed the witnesses. Where a trial court clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not the business of an Appellate Court to substitute its own views of the facts for those of the trial court. It is only where the trial court is proved to have abdicated this function or in carrying out the function makes an unsound finding that an Appellate Court can justifiably step in to do so or set aside such unsound finding for being perverse. (See Oduwole v Aina (2001) 17 NWLR (Part 741) 1 at 47 and Udengwu v Uzuegbu (2003) 13 NWLR (Part 836) 36 at 156). — Onnoghen JSC.

⦿ A MERE VARIATION OF PANEL DOES NOT NULLIFY JUDGEMENT OF COURT
This is also settled, a mere variation in the composition of a Panel or tribunal or court, which does not affect the substance of the inquiry, cannot touch or affect, the judgment or decision, of such a body neither does such variation, render the judgment or decision, a nullity. — Ogbuagu JSC.

⦿ DURING JUDGEMENT DELIVERING, IT IS NOT NECESSARY FOR ALL PANEL MEMBERS TO BE PRESENT
Now, the Committee is a Tribunal and not a regular court. Even in a court that a Panel is constituted including the two Appellate Courts in this country, it has been held that, it is not necessary for all the Justices that heard the matter, to be present during the delivery of their judgment. Indeed, one of them can read out and deliver the judgment of the Court in the open court. (See the case of Okino v Obanabira & 4 others (1999) 12 SCNJ 27). — Ogbuagu JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Walter Samuel Nkanu Onnoghen, JSC.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Ubong Esop Akpan Esq.

⦿ FOR THE RESPONDENT
Dele Oye Esq. for first respondent.
N.I. Quakers Esq. for second respondent.

➥ CASE HISTORY
The appellant is a legal practitioner with a law firm in Abia State where he carries out his law practice. In the course of that practice his professional services were retained by the second respondent, Mrs Nwanna Awa Agwu, a businesswoman based in the Cameroon, in respect of the execution of judgment obtained in Cameroon for CFA20,000,000 against three fellow Nigerians namely Ebi Eme; Ume Ukpai and Uka Mbila Philip. An agreement evidencing the transaction was entered into by the appellant and the second respondent. The appellant took steps to execute the foreign judgment at the High Court of Abia State, holden at Ohafia in the process of which he recovered only N25,000 out of the total judgment debt. The appellant discontinued the proceedings against the third defendant Uka Mbila Philip in circumstances which the second respondent considered controversial. The sum of N25,000 recovered was from fifa and sale of the movable property of the judgment debtors. The second respondent eventually lost confidence in the appellant’s conduct of the case and consequently debriefed him but the appellant refused and or neglected to pay the second respondent the N25,000 recovered from the sale of movable assets of the said judgment debtors or any part thereof, in spite of repeated demands.

At the end, the second respondent petitioned the office of the Chief Justice of Nigeria which petition was forwarded to the Nigeria Bar Association for investigation at the end of which the said Bar filed a complaint against the appellant with the first respondent on allegations of professional misconduct. The complaint, as reproduced by the appellant in the appellant’s Amended Brief of Argument deemed filed by this Court on 16 November 2006 at page 6 thereof and relevant to the proceedings is, inter alia, that:- “. . . In his capacity as a Legal Practitioner for the Petitioner he recovered the sum of N25,000 in part settlement of judgment debt but refused to pay it over to the Petitioner.”

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

➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED]

Available:  Dickson Moses v The State [2006] - SC

I. Whether the complaint against the appellant amounts to an allegation of the commission of a crime of stealing by conversion under the Criminal Code as contended by learned Counsel for the appellant?

RULING: IN RESPONDENT’S FAVOUR.
A. “In the instant case, the facts and circumstances do not even suggest that the appellant intended to use the money recovered on behalf of the second respondent neither has it been alleged that the appellant spent the money so recovered nor withheld the money with the intention of spending same. In fact, the appellant contends that the second respondent never demanded for the money in his possession.
I hold the view that the complaint against the appellant speaks for itself and it is simply that the appellant was being accused of infamous conduct in a professional respect and not of the commission of any crime let alone the offence of stealing by conversion. It should also be noted that throughout the trial the appellant never raised an objection to the complaint being of a criminal nature or pleaded to the jurisdiction of the first respondent to hear his matter.”

B. “This clearly is an exception to the general rule that where an allegation against a person before an administrative tribunal is also an offence under the criminal code, the administrative tribunal cannot hear the complaint except the criminal aspect of same has been heard and determined by a court of competent jurisdiction as decided by this Court in a number of cases including Garba v University of Maiduguri (supra) etc.”
.
.
II. Whether the compliant against the Appellant ought to have been levelled by a charge?

RULING: IN RESPONDENT’S FAVOUR.
A. “It is not disputed that the first respondent is not a court of law exercising jurisdiction in criminal matters under the Criminal Code and applying the provisions of the Criminal Procedure Act. It is conceded by both parties that the first respondent is an Administrative Tribunal or body exercising quasi-judicial functions or jurisdiction. I agree with the learned Counsel for the first respondent that as an administrative body or tribunal, the first respondent possesses the capacity to determine its procedure by virtue of rule 9 of the Legal Practitioners (Disciplinary Committee) Rules, Cap. 207, Laws of the Federation, 1990 and that the said ‘capacity is restrained only by the caution that such procedure meets the demands of natural justice and in accordance with the Evidence Act.’”

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

RULING: IN RESPONDENT’S FAVOUR.
“It must be noted that the appellant filed no reply brief in his action. It therefore means that learned Counsel for the appellant concedes the contention of the learned Counsel for the first respondent that by the combined effect of Item 1 of the Second Schedule to Cap. 207 Laws of the Federation, 1990 as amended by section 15(a) and (b) of Decree No. 21 of 1994 read together with section 11(2) of Decree No. 21 of 1994 the quorum of the Disciplinary Committee shall be five persons three of whom shall be as stated in the enactment. It is clear from page 23 of the Record that six and five persons as members were present at the hearing and judgment and that they all belong to the class of persons provided in section 11(2) of Decree No. 21 of 1994. From the above, it is my considered view that the argument of learned Counsel for the appellant on the issue of quorum is misconceived and is consequently discountenanced by me.”

Available:  CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS. v. JOHNSON O. OLORUNFEMI (1989)

“It is important to note that at the delivery there of five of the six members who heard evidence were present and none dissented nor expressed a contrary opinion. It is very clear therefore that the fact that the other members did not express a contrary opinion confirms their agreement with the judgment as read by the Chairman of the panel and I therefore come to the irresistible conclusion that the decision of the first respondent in the circumstances of the case cannot be vitiated.”
.
.
IV. Whether the LPDC made a proper finding & appraisal of the facts?

RULING: IN RESPONDENT’S FAVOUR.
“Then, in answer to a question from the first respondent, the appellant, had this to say, as follows:- ‘I confirm that I still have N18,000 of the Petitioner’s money in my possession. Even if I take 25% of the amount as the agreed legal fee to be paid to me, I am still owing the petitioner some money; I made the same disclosure to Attorney-General of Abia State. I do not have the whole of the money to be refunded to the petitioner here now.’”

“It has to be always borne in mind that the complaint against the appellant is mainly that he collected clients’ money which he failed or refused to pay over to the client and there is sufficient evidence on record to support the finding that this was the case. The finding is also supported by the testimony of the appellant himself [as provided above] who has in effect substantially admitted the accusation. There is therefore nothing to be analysed by the first respondent. The finding is not perverse and I find no legal basis for this Court to disturb the same. I also do not agree that the appellant was found liable for a different complaint from that for which he was charged. Whether the appellant failed or refused to pay over to the second respondent the sum recovered is of no moment, the truth of the matter being that he did not pay the money to second respondent as required of him by the profession he professes to practice.”
.
.
“In conclusion I find no merit in the appeal which is accordingly dismissed and the application for the exercise of prerogative of mercy on the appellant is refused. The judgment of the first respondent is hereby affirmed with a further order that the one year suspension of the appellant will now take effect from today, the 9 February 2007 being the day the appeal is decided and the judgment of the first respondent affirmed.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 383 Criminal Code Act;
Section 36(6a) Nigerian Constitution 1999 (as amended);

➥ REFERENCED (CASE)
⦿ DISCIPLINARY COMMITTEE CAN PUNISH A PROFESSIONAL WHO HAS ADMITTED TO CRIMINAL MISCONDUCT WITHOUT GOING TO COURT
In the case of Dangote v C.S.C. Plateau State (2001) 9 NWLR (Part 717) 132 at 159 per Karibi-Whyte, JSC, inter alia, as follows:- “The contention of the appellants is that even on the facts respondents should have waited for the criminal prosecution of the appellant before taking any disciplinary action arising from the criminal offences alleged against him. The decisions of F.C.S.C. v Laoye (supra); Garba v University of Maiduguri (supra) and UNTHMB v Nnoli (1994) 8 NMLR (Part 363) 376 were cited and relied upon. These are decisions where the allegations of the commission of criminal offences have been denied and disputed. In such cases the burden rests on the accuser to prove the commission of the alleged criminal offences beyond reasonable doubt. this burden can only be discharged by a court established by law and constitutionally vested with powers to exercise criminal jurisdiction. The decisions have not considered and have not decided the situation where the administrative body has proceeded to exercise its jurisdiction to impose sanctions where the person accused has admitted the commission of criminal offences. It cannot be disputed that where there is an admission of the commission of the criminal offences alleged the question of establishing the burden on the accuser to establish the commission of the offences does not arise. Accordingly, the question of violating the rights of the accused is not an issue. It seems too preposterous to suggest that the administrative body should stay the exercise of its disciplinary jurisdiction over a person who had admitted the commission of the criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before disciplinary proceedings should be taken. I do not think the provision of the law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrongdoings. It is established law that after a plea of guilty by the accused before the court exercising jurisdiction in respect of criminal offences, the court must formally proceed to conviction without calling upon the accuser to prove the commission of the offence by establishing the burden of proof required by law – see section 218 of the Criminal Procedure Act; see also R v Wilson (1959) SCNLR 462; (1959) 4 FSC 175. This is because the admission of guilt on the part of the accused had satisfied the required burden of proof. In the instant case there is nothing precluding the respondents from resorting to the relevant necessary administrative machinery and of imposing the appropriate applicable sanctions after the admission of the appellant of the commission of the offences of conspiracy and theft alleged against him had been established.”

Available:  Global Excellence Communications Limited & Ors v. Mr. Donald Duke (2007)

⦿ ABSENCE OF A FORMAL CHARGE FILED IN A DISCIPLINARY PANEL DOES NOT NULLIFY THE PROCEEDING WHERE FAIR HEARING HAS BEEN OBSERVED
In Okike v L.P.D.C (No. 2) (2005) 7 SC (Part 111) 75 at pages 93, 113 and 116 as follows, Per Musdapher, JSC:- “In my view, the word ‘charges’ used under the rule does not mean and cannot mean formal charges in a criminal trial before a criminal court . . . Therefore what needs to be known to the legal practitioner concerned is the substance of the allegations against him before the proceedings started: The precise nature of the allegations against the appellant were communicated to the appellant, he was well aware of the complaints against him. The appellant had fair notice of the allegations against him. Where the allegations contained in the petition before the disciplinary tribunal, as opposed to criminal tribunal, contains all the essential elements and enough information, it is not necessary to make reference to particular breaches of the rules as in a criminal case – See MDPDT v Okonkwo (supra) and Idowu v LPDC (1962) All NLR 128 as it will be necessary in a criminal trial. In my humble opinion, the absence of a formal charge did not occasion any miscarriage of justice, the appellant was well aware of the complaint against him.” …

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

Per Pats-Acholonu JSC: “…the characteristics or feature of a charge do not lie in procedural formalism but rather in the context of the unrighteous act being brought to the knowledge of the person so indicted in good lucid and really understandable English as in the present case. In the case before us now, the charge as I choose to call it, the document was couched in simple prose and he was requested to appear before the Peers of his profession. It is not an indictment wearing a criminal garb. The issue before us is as to whether the act of the appellant constituted a gross misconduct to affect his status in the profession of the Bar. Therefore to latch or clutch on the defence of improper charge laid, shows the inability of the appellant to fully grasp the nuance associated with the procedure in handling his case by the respondents.”

➥ REFERENCED (OTHERS)
Paragraph 4 of the Statutory Instrument No. 17 of 1994 provides thus:- “4. References of case to Tribunal by Panel – In every case where in pursuance of section 10(1) of the Act the Disciplinary Committee is of the opinion that a prima facie case is shown against a Legal Practitioner, the Nigerian Bar Association shall forward a report of such a case to the secretary together with all the documents considered by the Nigerian Bar Association, and a copy of the charges on which the Nigerian Bar Association is of the opinion that a prima facie case is shown.”

End

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