Judges

By Ise-Oluwa Ige

In this piece, Vanguard Law and Human Rights examines the provisions of the Legal Practitioners Disciplinary Committee Rules 2020 issued by the immediate past Chief Justice of Nigeria, CJN, Justice Ibrahim Muhammad, interrogates previous Rules and positions of key stakeholders and argues that the new Chief Justice of Nigeria, Justice Olukayode Ariwoola will do well to review the Rules to guarantee impartial decisions.

Background

Towards the end of August 2022, the Legal Practitioners Disciplinary Committee, LPDC, wrote a letter to Wole Olanipekun Chambers over its preliminary findings in a public interest petition by the Incorporated Trustees of the Nigerian Bar Association against one Adekunbi Ogunde, a partner in the Chambers of Chief Wole Olanipekun, SAN.

The LPDC’s letter dated August 19, 2022, by its Secretary, Daniel Tela, was in response to an August 17, 2022, correspondence by one Adelani Ajibade in the Chambers of Chief Wole Olanipekun requesting for extracts of findings of the Initial Member Review of the LPDC in respect of the NBA’s petition against Adekunbi Ogunde before it. Ms. Ogunde is a partner in the Chambers of Chief Olanipekun.

The LPDC is a committee of the Body of Benchers that was created to exercise quasi-judicial disciplinary powers over legal practitioners who misconduct themselves in professional respect.

In the four-paragraph correspondence which gave Chief Wole Olanipekun’ s Chambers clean bill of health, LPDC stated: “With regards to the Applicant’s prayer to also consider whether the partners of the firm of Wole Olanipekun & Co are not liable to be disciplined, I hold the humble view that since there is no evidence to show that the Respondent indeed acted with the knowledge and consent of the Principal partners, especially with the partner’s express and constant denial of the content of Exhibit 1 to the effect that the Respondent acted without the authority or consent of the Principal partners or the firm, cannot situate that anglers the Applicant’s prayer to both the Act and the Rules. Accordingly, I see no merit in recommending further investigation against the partners of the firm. I so hold,” the letter concluded.

It would be recalled that Ms Ogunde, a United Kingdom-trained lawyer had sent a three-page letter to Saipem’s top executive, Francesco Caio, soliciting for offer of legal services in a criminal case instituted by Rivers State Government against Saipem, a case she knew was being handled by a law firm of a former Minister of Petroleum, Ajumogobia & Okeke.

She had claimed in the correspondence to Saipem that a quick research about Wole Olanipekun & Co would reveal that the law firm was actually the leading litigation firm in the country with the track-record of helping multinationals in sensitive and highly political matters in the past, adding “the presence of our lead partner, Chief Olanipekun,  in the matter will significantly switch things in favour of Saipem.”

She had further told Saipem that “Chief Olanipekun, SAN, is currently the Chairman of the Body of Benchers which is the highest ruling body in the Nigerian legal profession, made up of Supreme Court judges, Presiding Justices of the Court of Appeal and Chief Judges of all State High Court including the Rivers State High Courts.

In other words, Chief Olanipekun is the Head of the entire legal profession in Nigeria.”

The NBA had approached the LPDC with a petition urging it to hold that Ogunde breached section 39 (2) of the Rules of Professional Conduct for Legal Practitioners 2007 by her conduct on the one hand and that the committee should investigate the culpability of the law firm of Wole Olanipekun in the alleged misconduct by Ms Ogunde.

The section 39 specifically provides that a lawyer practising in Nigeria shall not engage or be involved in any advertising or promotion of his practice of the law which (a) is inaccurate or likely to mislead; (b) is likely to diminish public confidence in the legal profession or the administration of justice or otherwise bringing the legal profession into disrepute; (c) makes comparison with or criticises other lawyers or other professions/professionals; (d) include any statement about the quality of the lawyer’s work, the size or success of his practice or his success rate or (e) is so frequent or obstructive as to cause annoyance to those to whom it is directed.

The NBA had also written Chief Olanipekun to step down as Body of Benchers Chairman to enable LPDC begin the trial of the case.

But with the LPDC intervention, Chief Olanipekun had no reason to step down.

The Disciplinary Committee had exercised its powers to clear Wole Olanipekun’s Chambers under section 5(1) (2) (3) of the Legal Practitioners Disciplinary Committee Rules 2020.

Specifically, section 5(1) of the LPDC Rules 2020 provides that “An application made in accordance with Rule 4 shall initially be considered by a member of the Committee (“the initial committee member”) on the directive of the Chairman for consideration of the questions of whether there is a case to answer in respect of the allegations made in the Originating Application.”

However, section 5(2) of the LPDC Rules 2020 provides that if the initial committee member considers that there is a case to answer in respect of any or all the allegations made and is not of the opinion that the question is one of doubt or difficulty, then, he must certify that there is a case to answer while 5(3) provides that if he is minded not to certify that there is a case to answer in respect of all or some of the allegations made or is of the opinion that the question is one of doubt or difficulty, the question must be considered by a panel of three members of the Disciplinary Committee and that the initial committee member may be a member of the panel.

Before the LPDC Rules 2020 was issued by the immediate past Chief Justice of Nigeria, Justice Tanko  Muhammed, there was LPDC Rules of 2006. Under the 2006 Rules of the LPDC, preliminary investigations against legal practitioners for alleged professional misconduct were carried out by the Nigerian Bar Association.

The NBA then after its committees had done preliminary investigations, would, where necessary, make a report of its finding that a prima facie had been made against the erring legal practitioner or practitioners as the case may be.

The NBA would then on behalf of the legal profession file complaints before the LPDC against the legal practitioners concerned. In other words, the NBA was the one prosecuting on behalf of the legal profession then.

However, two and a half months after the August 19, 2022 LPDC correspondence to Chief Olanipekun Chambers on the outcome of its preliminary investigation of the petition against Ms Ogunde, a prominent member of the inner bar, Mr. Samuel Okutepa, SAN called the attention of the Nigerian legal community to what he called the illegality and the unconstitutionality of section 5(1)(2) and (3) of the LPDC Rules 2020.

“The intention of the draftsman of the Legal Practitioners Act is that those who took part in the investigations of complaints against legal practitioners are not to sit as members of the LPDC to decide the said complaints against the legal practitioners concerned.

“That is why the Legal Practitioners Act expressly said that those who are to sit to adjudicate over complaints in the LPDC shall be those who are not connected with either the investigation of a complaint or the decision by the association to present a complaint against a legal practitioner for determination by the Disciplinary Committee.

“There is no doubt that Rule 4 of the LPDC Rules grants direct access to persons who have complaints of professional misconduct against lawyers to file such complaints of professional misconduct before LPDC. LPDC, it is submitted, was created by law to try complaints of professional misconduct against lawyers. It was not created as an investigatory organ.

“But LPDC panel or panels now filter originating processes as filed through one man or three-man panel of the members of LPDC to form an opinion that there is a prima facie case for the lawyers concerned to answer before LPDC.

“The LPDC then tries the erring lawyers upon the basis of the opinions formed or investigations conducted by its members, made up of either the one man Panel or three-man panel of LPDC based on the filtering stages conducted by LPDC members that there is a prima facie case to answer.

“The procedures set out in Rule 5 of the LPDC Rules, it is humbly submitted has unwittingly turned LPDC into investigator of the Originating process and adjudicating authority over the cases it investigated. There are inherent dangers herein,” Okutepa argued.

Continued he said: “It is safe to submit that possibility of biases exist when the real trials or hearing of the originating application commences before LPDC of which those who took part in the initial flirtations or investigations are still parts and parcel of the membership of LPDC.

“The problems created by Rule 5 of the LPDC Rules, were the kind of problems that the 2006 Legal Practitioners Disciplinary Committee Rules had solved. LPDC had no role to play in investigations or filtering of petitions as Rule 5 has now introduced. NBA was the one that was investigating petitions against lawyers and after the investigations, if prima facie case was established, NBA initiates complaints before LPDC.

“That way LPDC and its members will not filter or investigate originating applications to determine prima facie case, before proceeding to the hearing of the complaints filed against lawyers as it is being done now by LPDC. This is a serious issue that must be urgently addressed if we are to make serious headways in our disciplinary processes,” he said.

Citing a judicial precedent, Okutepa argued that: “In Obiajulu Nwalutu vs. Nigerian Bar Association & Anor (supra), the Supreme Court said: “Before the decision of this Court in Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300 ; (1985) 2 NSCC Vol. 16 page 998, the Legal Practitioners Act No. 15 of 1975 provided in Section 10 as follows:-

“10(1) There shall be a committee to be known as the Legal Practitioners’ Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty 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 Act.

(2) The Disciplinary Committee shall consist of

(a) the Attorney-General of the Federation, who shall be chairman;

(b) the Attorneys-General of the States in the Federation;

(c) twelve legal practitioners of not less than ten years’ standing appointed by the Benchers on the nomination of the Association”.

“The composition of the Legal Practitioners Disciplinary Committee was later amended by the Legal Practitioners (Amendment) Decree No. 21 of 1994which was published as Supplementary to the Laws of the Federation of Nigeria 2004. Section 11 (1) & (2)provides as follows: –

“11-(1) There shall be a Committee of the Body of Benchers to be known as the Legal Practitioners Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty of considering and determining any case where it is alleged that a person who is a member of the legal profession has misbehaved in his capacity as such or should for any other reason be the subject of proceedings under this Act.

(2) The Disciplinary Committee shall consist of:-

(a) a Chairman who shall not be either the Chief Justice of Nigeria or a Justice of the Supreme Court;

(b) two Justices of the Court of Appeal one of whom shall be the President of the Court of Appeal.

(c) two Chief Judges;

(d) two Attorneys-General who shall be either the Attorney-General of the Federation and the Attorney- General of the State or two State Attorneys-General; and

(e) four members of the Association who are not connected with either the investigation of a complaint against a legal practitioner for determination by the Disciplinary Committee”.

“The amendment addressed the problem which arose in L.P.D.C v. Fawehinmi supra where the Attorney-General of the Federation was the Chairman of the Disciplinary Committee and also initiated disciplinary proceedings against the respondent.

“The respondent applied to Court for an order prohibiting the Disciplinary Committee as constituted from hearing the charges of professional misconduct preferred against him having regard to the principles of natural justice embedded in the principle of nemo judex in causa sua (no one can be judge in his own cause).

“In seeking the order, the respondent based his application on Section 42 (3) of the 1979 Constitution and sought for the enforcement of his fundamental right to fair hearing under Section 33 of the Constitution.

“He predicated his complaint on the likelihood of bias since the Attorney-General and 3 other members of the Committee had actively participated in investigating the matter and had in an earlier occasion expressed strong opinions against the respondent.

“The trial Judge found for the respondent and the Court of Appeal dismissed the appeal filed by the Committee.

“On a further appeal to the Supreme Court, the appeal was dismissed.

“The Court held that in the exercise of its disciplinary authority over erring legal practitioners, the Legal Practitioners Disciplinary Committee must observe the rules of natural justice and in that context, it must not only avoid bias but also the likelihood of bias.

“Thus, the Attorney-General of the Federation has ceased to be the Chairman of the Disciplinary Committee.

“Any direction given by the Disciplinary Committee against a legal practitioner invariably is challenged at the Supreme Court and this is the rationale for excluding the Chief Justice and Justices of the Supreme Court from being members of the Disciplinary Committee.

“Where any of the members listed in Section 11 (2) (b)-(e) is a complainant he cannot take part in the disciplinary proceedings as such a member.

“I have quoted these decisions in extenso to demonstrate one thing: Justice is rooted in confidence.

“It is submitted that in this write up, I am not insinuating anything other than the observation of purity of justice.

“Those who participated in the filtering processes may not sit when the results of their investigations or filtering processes become object of adjudication before the LPDC of which they are still members.

“They stay in the same office and the same chambers with those who will decide and give directions. This is not correct. It is unacceptable.

“The principle that those who have the duty to decide must not give appearance of bias is of considerable antiquity. R vs Sussex Justices, Ex parte McCarthy([1924] 1 KB 256, is a leading English case on the impartiality and recusal of judges.

“It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a decision. It also brought into common parlance the often quoted aphorism “not only must Justice be done; it must also be seen to be done.”

“This authority is notorious for the principle that in any setting where an impartial decision is expected, those saddled with the duty to produce the result must not give appearance of bias. Justice demands that they live above board. Any appearance of bias destroys the confidence of the people,” he added.

Okutepa (SAN) has, by his comprehensive position captured above, created a rich ground for debate on the legality or and constitutionality of section 5(1)(2)(3) of the Legal Practitioners Disciplinary Rules 2020 and possible review of the Rules.

Although Okutepa’s perspective sounds convincing, Vanguard attempts to seek views of prominent lawyers on the entire Rules 2020 for LPDC.

The lawyers who spoke with Vanguard on the matter included a former President of NBA, Mr. O.C.J Okocha, SAN), former President of West African Bar Association, WABA, Mr. Femi Falana, SAN, Prince Richard Ahonaruogho, SAN, former Chairman of National Human Rights Commission, NHRC and former Minority Chief Whip of Imo State House of Assembly between 1979 and 1983, Chief Mike Ahamba, SAN.

However, with the exception of Okocha, all the lawyers contacted said they had not read the new Rules and pleaded to be allowed time to go through to enable them make informed comment.

After 24 hours, all the lawyers contacted did not answer fresh calls placed to them except Okocha. He insisted there was nothing illegal in the present structure and procedure of operation of the LPDC.

According to him, “Yes, members of the LPDC will investigate petitions against affected legal practitioners and make recommendations to the LPDC to try the petition.

“It is expected that the members of the LPDC that make the recommendation will not participate in the trial to secure the principle that an investigator cannot be a judge. That is how it is.

“Those who participated in the investigation, even if they are members of the LPDC will not participate in the trial of the petition or person alleged to have committed professional misconduct,” he rang off.

Although, majority of legal practitioners consulted are yet to give their perspectives on the issue on the account that they were yet to read the new Rules signed since 2020, it appears that the position of Okutepa on this issue is overwhelmingly persuasive to necessitate a second look at the section 5(1)(2)(3) of the Legal Practitioners Disciplinary Rules 2020.

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