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Charles Ikechi Okike v. The Legal Practitioners Disciplinary Committee & Ors

   Court of Appeal

Judgement delivered on Wednesday, July 27, 2005
Citation: 48 NIPJD [CA. 2005] K/309/2004
Suit No. CA/K/309/04     Jurisdiction: Nigeria

BABA ALKALI BA’’ABA, J.C.A.
ABUBAKAR ABDULKADIR JEGA, J.C.A. (Delivering the Lead Judgement)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

Appearances: N. Uzuegbu for the Appellant
M. D. Adoke for the Respondent

CITED IN

Nigerian Breweries Plc. v. Pabod Breweries Ltd. & Anor.

Excerpt from the citation:

“There are plethora of cases on law that unchallenged or uncontroverted evidence will be deemed admitted and the court can rely on same. See Okike v. L.P.D.C (2005) 15 NWLR (Pt. 949) 7, 471 S.C., Ivienagbor V. Bazuaye (1999) 4 NWLR (Pt. 620) 552.”

I.  FACTS

This is an appeal against the decision of Adeniyi F.A. Ademola, J. of the Federal High Court, Kano, delivered on 1st July, 2004, in suit no. FHC/K/JCP/ 7/2004, in which he dismissed the appellant’s application for the enforcement of his fundamental rights, in respect of the directions of the Legal Practitioners’ Disciplinary Committee of the Body of Benchers of 3rd April, 2003, ordering the striking off of the name of the appellant from the roll of legal practitioners in Nigeria, and for the refund of the sum of $123,000.00 to the 2nd respondent. The facts of this case as can be gleaned from the totality of the records presented before this court, inclusive of the filed briefs of the parties are briefly set out below as follows:-

The appellant who was a legal practitioner in Nigeria, prior to the 3rd day of April, 2003, when the direction of his name to be struck off the roll of legal practitioners in Nigeria was delivered by the Legal Practitioners’ Disciplinary Committee of Body of Benchers (1st respondent), and practices as such at No.245, unity road, Kano. As a result of the solicitor/client relationship between the appellant and a company known as Kaiyos Systems Inc. a Japanese company, the appellant took instructions and accordingly recovered certain sum of money for the company.

As a result of the failure of the appellant to fully remit or account for an outstanding sum of $121,600 already collected from the High Court of Justice, Kano, which the appellant did not in anyway whatsoever deny, the managing director of the company in the person of Mr. A. Kaihama, wrote a petition to the Nigerian Bar Association (NBA) Kano, dated 25th September, 1999, which petition obviously was not acted upon accordingly.

Consequent upon the above, the company which had earlier in October, 1996, appointed the 2nd respondent, Alhaji Salisu Mohammed as an attorney to collect and remit the said outstanding sum against the appellant to them vide a power of attorney dated June, 1996 took up the matter to higher authority by writing a petition, dated 27th September, 2000, to the Chief Justice of Nigeria (Hon. Justice Muhammadu Lawal Uwais) since all his efforts and that of his solicitors Ismail Gadzama & Associates for almost five years (1996-2000) to collect the money from the appellant had proved abortive even when the appellant deny collecting or being in possession of his client’s money totaling $121,600.00.

The 2nd respondent’s petition was directed to the then past president of NBA O.C.J. Okocha SAN for proper action, who then forwarded a copy of the petition to the appellant for his response and also the NBA disciplinary committee headed by the 3rd respondent Chief Bandele Aiku SAN for investigation.

The appellant accordingly, made his responses which in all, neither denied the allegation of the 2nd respondent. The NBA disciplinary committee investigation has shown by their report dated 19th October, 2001, did not also absolve the appellant, but found that a prima-facie case of professional misconduct has been established against him, which therefore called for the hearing of the petition by the Legal Practitioners Disciplinary Committee of the body of benchers headed by Alhaji Abdullahi Ibrahim, SAN.

It is a fact on record that the secretary of the Legal Practitioners Disciplinary Committee of the body of benchers Mr. Maidama A.U between 2nd May, 2002 and 20th March, 2003, when the 1st respondent sat in respect of the petition, against the appellant at the Court of Appeal headquarters in Abuja had forwarded six hearing notices to the appellant informing him of the several dates of hearing, which the appellant duly received and acknowledged, but failed to appear before the committee to defend himself physically.

The 1st respondent having considered all the evidence against the appellant made a direction on the 3rd day of April, 2003, that the appellant’s name be struck off the roll of legal practitioners in Nigeria and for the refund of the sum of $123,000.00 to the 2nd respondent.

It was pursuant to the above stated directions that the appellant filed his application by way of motion on notice dated 23rd February, 2004, for the enforcement of his fundamental rights to fair hearing which application was duly heard and dismissed on the 1st day of July, 2004, by the Federal High Court No.2 Kano, presided over by Hon. Justice Adeniyi F.A. Ademola.

The appellant being dissatisfied with the judgment of the lower court dismissing his application as being misconceived, abuse of court process and baseless filed his notice of appeal containing eleven grounds of appeal dated the 15th day of July, 2004.

From the eleven grounds of appeal, counsel for the appellant formulated three issues for determination, the issues are stated thus:-

1. “Whether the learned trial Judge erred and misdirected himself in law, when he failed to hold that various conditions precedent to the exercise of jurisdiction by the 1st respondent were not complied with and on those grounds quash the directions of 3rd April, 2003, and thus, occasioned a miscarriage of justice and/or denial of the appellant’s rights to fair hearing in the trial court.

2. Whether in view of the available and uncontroverted evidence before the trial court the 1st respondent could be said to have complied with sections 36(1) and 36(3) of the Constitution, which guarantee the appellant’s rights to fairness and impartiality in public hearing to determine his civil rights and obligations.

3. Whether the learned trial Judge failed to properly consider and rule upon some of the serious legal and constitutional issues raised by the appellant and descended into the arena by making out a case for the respondents thus occasioning a gross miscarriage of justice and/or denial of the appellants rights to fair hearing.”

Learned Counsel for the respondents on the other hand formulated only one issue for determination. The issue is stated thus:-

“Whether from the totality of the evidence before the court, the trial Judge was right in holding that the appellant’s right to fair hearing as guaranteed by the 1999 Constitution was not violated by the 1st respondent.”

When this appeal was heard on the 4th May, 2005, learned Counsel for the respondents Mr. M.B. Adoke adopted the respondents’ brief dated 24th November, 2004, and deemed filed on 19th January, 2005, and urged us to dismiss the appeal.

Learned Counsel for the appellant is duly aware of the date this appeal is being heard having been served with a hearing notice on 17th March, 2005, but did not present himself in court to argue the appeal. By the provisions of order 6 rule 9(5) of the Court of Appeal rules, the appellant is deemed to have argued his appeal.

I have closely studied the three issues formulated by the appellant for determination and from the facts and circumstances of this appeal, the main contention of the appellant is that at the hearing of his matter before the Legal Practitioners Disciplinary Committee he was not given a fair hearing. I am therefore of the strong view that one single issue is capable of disposing this appeal and the issue is as formulated by the learned Counsel to the respondent which is stated thus:-

“Whether from the totality of evidence before the lower court, the trial Judge was right in holding that the appellant’s right to fair hearing as guaranteed by the 1999 Constitution was not violated by the 1st respondent.”

In line with the above formulated issue, learned Counsel for the appellant submits that the respondents particularly the 1st respondent failed to comply with several conditions precedent to the exercise of jurisdiction and these lapses was brought to the attention of the learned trial Judge which he did not consider and either ignored them or glossed over them in order to arrive at the final decision which favoured the respondents. That the submissions on the issue of failure to comply with certain conditions precedent to the exercise of jurisdiction by the 1st respondent are:-

(a) There was no investigation in law of the complaint by the NBA.

(b) There was no proper report in law submitted to the 1st respondent committee by the NBA of its investigation of the complaint against the appellant.

(c) There was no formal charges drafted by the NBA against the appellant charging him with infamous conduct in any professional respect.

(d) There was no proper notice in law of the proceedings of the 1st respondent committee served on the appellant.

That the Legal Practitioners Act and the Practitioners Disciplinary Committee Rules clearly show that there must be an investigation of a complaint against a legal practitioner by the NBA – reference made to rules 2A(2) and 3 of the Legal Practitioners Disciplinary Committee Rules as amended and also section 11(2) of the legal practitioners Act as amended. Counsel contends that from the wording of section 11(2)(e) of the Act, the investigation of a complaint and the decision to present a complaint to the 1st respondent committee are two different actions. That the investigation of the complaint can properly be given to a committee of the NBA that is, the NBA Disciplinary Committee presided over by the 3rd respondent. But the decision to present the complaint to the 1st respondent is for the NBA as a body to make through its national executive which is elected. The appellant argues that in his case, the 2nd respondent wrote a petition (exhibit B1 which was referred to the then president of the NBA by the Chief Justice of Nigeria. The president of the NBA by a letter dated 21st May, 2001 (exhibit C1), then asked the appellant to respond to the petition directly to the 3rd respondent while copying the president of the NBA. That the appellant then responded as instructed directly to the 3rd respondent chairman of the NBA Disciplinary Committee and copied the president of the NBA (exhibit D). The appellant contends that the NBA Disciplinary Committee of which the 3rd respondent was the chairman is not mentioned in the law or rules. That it is the committee created by the NBA executive which consists of elected officials.

The appellant submits that since the purpose of investigation is to ascertain whether a prima-facie case is shown against the appellant, the rules of natural justice must apply especially since the decision is judicial or quasi-judicial. Reference made to LPDC v. Fawehinmi (1985) 2 NWLR (Pt.7) 300 at 381.

That the affidavit and statement of the appellant in the lower court shows clearly that he did not hear from the 3rd respondent or the NBA president after the appellant’s initial response and that the appellant was not given an opportunity to correct or contradict by cross-examination the allegations of the 2nd respondent made on behalf of Kai You Systems Inc. a Japanese Company. No statements or any evidence under oath were taken by the NBA disciplinary committee and neither was the authenticity of the alleged power of attorney relied by the 2nd respondent investigated or the existence or otherwise of alleged judgment debt of N14.5 million allegedly paid into a Kano High Court. Appellant referred to paragraphs 1-4 of his affidavit in support of the application. Counsel to the appellant argues that the counter affidavit and submissions of the respondents completely ignored and failed to contradict these facts which clearly show that there was no fair hearing of the complaint of the 2nd respondent against the appellant by the NBA Disciplinary Committee presided over by the 3rd respondent. Reference made to Garba v. University of Maiduguri (1986) All NLR 149 at 229. Further, the appellant submits that since the purpose of the investigation is to ascertain whether a prima facie case has been established against the appellant, this must be done after hearing evidence and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused. Reference made to Adeyemi v. The State (1991) 6 NWLR (Pt.195) 1 at 35. Counsel for the appellant referred to a portion of the judgment of the learned trial Judge at pages 133-134 of the record which states thus:-

“However, the applicant avers that the respondents did not comply with R.2(a)(2) as the 3rd respondent made no investigation. This averment cannot be true having regard to his own affidavit in support of the application for enforcement of fundamental right – paragraphs 7, 8, 9 and 10 and exhibits C1, F4(b), F6(b) and D as well as the statement of the applicant. This court finds as a fact that the 3rd respondent, Chairman NBA disciplinary committee complied with rules 2A (2) and4 of the Legal Practitioners (Disciplinary Committee) Rules.”

The appellant contends that this finding deliberately avoids the issue of fair hearing which is the basis of the entire application for the enforcement of the appellant’s fundamental rights. That if the so called investigation of the one person, Chief Bandele Aiku (SAN), the 3rd respondent and chairman of the NBA disciplinary committee did not comply with section 36 of the Constitution and the rules of fair hearing as set down by the Supreme Court in several cases, including the Garba case (supra) then there was no investigation in law and the Constitution and the rules were violated since the rules and the application of the rules must comply and be in accordance with the Constitution. The appellant submits that on this ground alone, the decision of the 1st respondent of the 3rd April, 2003, could and should have been quashed by the learned trial Judge as a condition precedent to the exercise of the 1st respondent’s jurisdiction had clearly not been met.

The appellant further contends that rule 3 of the Legal Practitioners Disciplinary Committee Rules provides that the NBA shall forward a report of the case against a legal practitioner to the respondent committee if a primafacie case is shown. That the NBA Disciplinary Committee is not created by law. It is an internal, ad hoc organ of the NBA. Chief Bandele Aiku (SAN) is not an elected member of the NBA or its executive. The appellant submits that a committee such as that presided over by Chief Bandele Aiku (SAN) must first of all submit its report to the NBA executive before it can be acted upon. That the whole process has to be transparent. That when the president of the NBA forwarded the complaint against the appellant to him for response, he attached the correspondence between the complainant and the Chief Justice of Nigeria and between the Chief Justice of Nigeria and himself. The appellant argues that there is and was no evidence that the NBA reached a decision that a prima facie case was shown against the appellant or in anyway deliberated upon or adopted any alleged decision of the NBA Disciplinary Committee. That the NBA Disciplinary Committee being a committee established by the NBA for a particular purpose, ought to have reported back to the NBA and allowed the NBA to carry out its statutory function of sending a report to the respondent committee. For the definition of committee, counsel for the appellant referred the court to Black’s Law Dictionary 6th edition page 273; Attorney-General of Bendel State v. Attorney General of the Federation & 22 Ors. (1981) All NLR 85. The appellant submits that the facts before the trial court are that the appellant complained immediately about the absence of the NBA report from the initial notice sent to him by the respondent committee. That the schedule to the rules clearly shows that the report is the most important document in the proceedings before the respondent committee as not only must it be sent along with the notice, but the proceedings are to be heard based on the report. That it was ten months after purporting to have commenced proceedings against the appellant that the 1st respondent committee produced a one page letter dated 19th October, 2001, which was called an NBA report. The appellant contends that the document cannot be described as an NBA report even though it appears to have been typed on the letter head of NBA.

That this is because it is signed by Chief Bandele Aiku (SAN) in his capacity as chairman and on behalf of the NBA Disciplinary Committee. That it is not signed on behalf of the NBA or any of its elected officials or executive. That rule 3 of the Legal Practitioners Disciplinary Committee Rules clearly states that the report is to be submitted to the 1st respondent committee by the NBA and not any committee of the NBA not established by law. The appellant argues that this becomes more relevant when one sees that all the notices from the respondent committee refers to proceedings No. BB/DCNB/ 016 Charles Okike Esq. that it is only after the decision of the respondent committee that one can see proceedings referred to as No. BB/DCNB/016 NBA v. Charles Okike Esq exhibit M at page 93 of the record referred to. That the appellant had no cause at any time to believe that any proceedings had been initiated against him, before the respondent committee by the NBA. None of the notices referred to the NBA or its report but the petition of the complainant alone.

The appellant contends that since the rules clearly states that the case before the respondent committee is to be based on the report of the NBA and not any petition of the petitioner or the complainant, a condition precedent to the exercise of jurisdiction by the respondent committee has not been complied with. For the definition of report, the appellant referred to Black’s Law Dictionary where the word “Report” is defined as follows:-

“An official or formal statement of facts or proceedings…”

That the learned trial Judge appears to have ignored the mountains of evidence from both the appellant and the respondents which shows that no proper report in law was submitted to the 1st respondent committee by the NBA. That the evidence of both parties shows that the 1st respondent committee acted directly on the complaint of the 2nd respondent and did not base their proceedings on any NBA report. The 3rd respondent did not mention the NBA report in his counter affidavit or in anyway try to contradict the serious allegations made about it by the appellant, which clearly he had a duty to do and must be taken to have admitted same. Reference made to Ajomale v. Yaduat No.2 (1991) 5 NWLR (Pt.191) 266 at 282-283; Agbaje v. Ibru Seafood Ltd. (1972)5 SC. 50 at 85; Egbuna v.Egbuna (1989) 2 NWLR (Pt.106) 773 at 777b.

The appellant further argues that rule 3 (as amended) of the Legal Practitioners (Disciplinary Committee) Rules provides specifically that the documents to be forwarded to the respondent committee by the NBA must include a “…a copy of the charges on which the NBA is of the opinion that a prima facie case is shown.”

The appellant contends that no charges were framed or served on him and that in the circumstances of this case, the appellant could only be tried under one of the two headings – professional misconduct or infamous conduct in a professional respect. Reference made to I.B.WA. v. Imano (Nig) Ltd. (1988) 3 NWLR 633 at 655. That only a trial under a charge of infamous conduct can lead to the disbarment of a legal practitioner. Reference made to LPDC v. Fawehinmi (supra); Medical & Dental Practitioners Disciplinary Tribunal v. Okwonkwo (2001) 7 NWLR (Pt.711) 266, (2001) 3 SCNJ 186; Atoyebi v. Odudu (1990) 6 NWLR (Pt.157) 384 at 403.

It is further submitted by the appellant that there was no proper notice in law of the proceedings of the 1st respondent committee served on the appellant. That all the notices stated that it was the petition of the 2nd respondent which was to be heard and no report of the NBA. No charges had been brought against the appellant before the services of the notices that the notice served on the appellant did not give the appellant thirty days to appear and none of the notices stated that the NBA was the prosecutor or party to the proceedings.

The appellant submits that the learned trial Judge should have found that since the proceedings before the respondent committee involved a determination of the appellant’s civil rights and obligations, and since the Legal Practitioners (Disciplinary Committee) Rules, provides that its proceedings should be held in private and were in fact held in private. The proceedings are null and void and in violation of the appellant’s rights to fair hearing in public under Sections 36(1) and (3) of the constitution. Reference made to Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (Pt.7) 300 at 386; Galadima v. Tambai (2000) 6 SCNJ 190 at 203; (2000) 11 NWLR (Pt. 677) 1; Alhaji Bani Gaa Budo Nuhu v. Ahaji Isola Are Ogele (2003) 16 NSCQLR 390; (2003) 18 NWLR (Pt. 852) 346; Orugbo v. Una (2002) 9 SCNJ 12 at 22; (2002) 16 NWLR (Pt. 792) 175 Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 at 520; Dungtoe v. Civil Service Commission Plateau State & 2 Ors. (2001) 4 SCNJ 131 at 148, (2001) 9 NWLR (Pt.717) 132; Elakhame v. Osemobor (1991) 6 NWLR (Pt. 196) 170 at 177P; Skenconsult (Nig.) Ltd. & Anorv. Ukey (1981)1 SC. Ariori v. Elemo (1983) 1 SCNLR 1; (1983) 1 All NLR 1; LPDC v. Fawehinmi (Supra).

The appellant submits that the allegation against him before the 1st respondent’s committee amounts to the commission of a criminal offence. That misappropriation is a criminal offence under the penal code and the word carries all the imputations of dishonesty devastating to a legal practitioner in that regard therefore, the 1st respondent committee had no jurisdiction to entertain same but only the regular, impartial and independent courts under the constitution.

Reference made to Dr. E. O.A Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306; Garba & Ors. v. University of Maiduguri (Supra); Federal Civil Service Commission & 2 Ors. v. Laoye (1989) 2 NWLR (Pt. 106) 652; Esiaga v. University of Calabar (2004) FWLR (Pt.706) 381.

The appellant submits that the matter before the 1st respondent committee involved a determination of the appellant’s civil rights and obligation particularly as the power of attorney on which the 2nd respondent’s petition was based is for the recovery of money and the decision ordered the appellant to refund monies to the complainant and not the person he claimed to be representing. That section 36(3) of the Constitution provides that all such proceedings should be held in public. Ab initio, the respondent committee could not have had jurisdiction to entertain the matter since its own rules provide that its proceedings “shall be held in private. That where proceedings to determine a person’s civil rights and obligations are held in private rather than in public then the proceedings are null and void and conducted without jurisdiction. Reference made to Mewakaya v. Mewakaya (2001) 9 SCNJ 1, (2001) 16NWLR (Pt.738) 203; Alhaji Budo Nuhu v. Alhaji Isola Ogele (2005) 16 NSCQR 390; (2003) 18 NWLR (Pt. 852) 251; Kenom v. Tekam (2001) 14 NWLR (Pt.725) 654, (2001) 7 SCNJ 620; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 444.

It is further submitted for the appellant that the learned trial Judge failed to consider or rule on several important and constitutional issues thus, leading to a miscarriage of justice and or denial of appellant’s right to fair hearing. That the learned trial Judge descended into the arena by basing his decision on evidence and arguments not before him or presented by the parties and made a case for the respondents by himself. That none of the appellant’s fundamental rights under the constitution can be waived, or said to have been waived since they are in the nature of duties to be rendered to the public. Reference made to Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 165; Commissioner for Works, Benue State v. Devcom Ltd (1988) 3 NWLR (Pt.83) 407 at 420; Engineer Goodnews Agabi & Anor v. Chief Audu Ogbe & Ors (2004) 15 NWLR (Pt.844) 493, (2004) SCNJ 179 at 199; Mewakaya v. Menakaya (Supra).

In reply to the submissions of the appellant, learned Counsel for the respondents, Mr. Adoke, submits that the appellant was given fair hearing before the 1st respondent tribunal. Learned Counsel for the respondents referred to Section 36(1)(2) and (3) of the 1999 Constitution of Nigeria. Counsel states that the 1st respondent is deemed in law as a tribunal set up by the Legal Practitioners Act (Cap. 207) LFN 1990, as amended by the Legal Practitioners Act 1994, section 10 of the Legal Practitioners Act Cap 207, provides for the establishment of the 1st respondent. Counsel for the respondents submits that by the provisions of section 36(1), (2) & (3) of the 1999 constitution of the Federal Republic of Nigeria stipulates five requisite conditions for fair hearing in any matter or proceedings.

These are – (i) fair hearing within a reasonable time; (ii) the court or tribunal must be constituted in such a manner as to secure its independence; (iii) give opportunities to the person whose rights and obligations may be affected to make representation; (iv) the determination of the court or tribunal must not be final or conclusive; (v) the proceedings of the court or tribunal, including the announcement of the decisions shall be held in public. Counsel for the respondents contends that the totality of the evidence presented before the learned trial Judge revealed beyond doubt that the 1st respondent did observe these principles of fair hearing in the proceedings held before them between May, 2002 to 3rd April, 2003, with regard to the petition or complaint of the 2nd respondent against the appellant pursuant to which the learned trial Judge had no difficulty in dismissing the appellant’s application dated the 23rd day of February, 2004, for being misconceived, baseless and an abuse of the process of court. Further, Counsel for the respondents contends that they are fortified in making the above submissions, if a dispassionate examination or consideration of the totality of the evidence presented before the lower court is analyzed vis-a-vis the requisite onus of proof placed on the appellant by section 137(1) of the Evidence Act (Cap. 112) LFN 1990, since it was the appellant who made the allegation of lack of fair hearing against the 1st respondent which onus he failed woefully to discharge as required by law. Reference made to section 137(1) of the Evidence Act Cap. 112 LFN 1990. That having examined the constitutional pre-condition for fair hearing in proceedings under section 36(1), (2) & (3) of 1999 Constitution and the onus of proof in civil proceedings in accordance with section 137(1) of Evidence Act, the next question that requires answer is what is the nature and quality of the evidence placed by the appellant before the learned trial Judge to prove his allegation of fair hearing against the 1st respondent’s tribunal.

In answer to the above question, the respondents contend that the nature of the evidence placed before the lower court by both parties was in the form of affidavit evidence which accompanied the appellant’s application by way of motion on notice dated the 23rd day of February, 2004. Attached to the affidavit are several documents marked as exhibits, the statement in support of the application and a verifying affidavit. That the respondents filed a counter affidavit in opposition to the appellant’s application for the enforcement of his fundamental right, this is contained at pages 103-106 of the record of appeal. Counsel for the respondents submits that in the instant appeal, the appellant’s voluminous evidence as it were, produced before the lower court could not establish in anyway whatsoever that, the 1st respondent failed to observe the five principles of fair hearing when they heard the 2nd respondent’s petition or complaints against him. That the evidence produced by the appellant were not only watery, unsubstantiated but supported the assertion of the respondents that the appellant was duly and patently given fair hearing in the proceedings before the 1st respondent’s tribunal. The respondents submit that all the appellant vehemently laboured in vain to establish before the lower court as constituting proof of lack of fair hearing by his evidence and also in his brief of argument before this Hon. court can be summarized thus:-

(i) That there was no investigation of the 2nd respondent’s petition or complaint by the NBA.

(ii) That there was no report of NBA investigation of the 2nd respondent’s complaint.

(iii) That no specific charge or charge’s was brought against him by the NBA before the 1st respondent.

(iv) That he was never served with the notices of the proceedings before the 1st respondent.

(v) That the 1st respondent’s tribunal, exhibit malice against him in the proceedings before them.

(vi) That the 1st respondent’s proceedings were done in private.

(vii) That the 1st respondent had no jurisdiction to try or hear the petition or complaint against him since same was a criminal complaint.

It is submitted for the respondents that the above enumerated complaints of the appellant as constituting proof of lack of fair hearing are a mere figment of the imagination of the appellant.

completely baseless, unproven and unsubstantiated allegations in the light of the evidence produced by the appellant himself before the lower court. On the 1st and 2nd allegations of the appellant, counsel for the respondents contends that the learned trial Judge found rightly that there was in fact, an investigation of the petition or complaint by the NBA Disciplinary Committee headed by the 3rd respondent (Chief Bandele Aiku [SAN]). The respondents refer to line 5 of the last paragraph at page 138 of the printed record where the trial Judge held thus:-

“however, the applicant avers that the respondents did not comply with rule 2(A) as the 3rd respondent made no investigation. This averment cannot be true having regard to his affidavit in support of the application for enforcement of fundamental right – paragraphs 7, 8, 9 and 10 and exhibits C1, F4(b), F6(b) and D as well as the statement of the applicant. This court finds as a fact that the committee complied with rules 2(A)(2) and 4 of the Legal Practitioners Disciplinary Committee Rule.”

Learned Counsel to the respondents argues that the above findings have not been successfully challenged or disproved by the appellant and urged us to uphold this findings of fact. In addition to the above, counsel to the respondents refer us to exhibits C at page 63 of the record notifying the appellant of the commencement of investigation. Exhibit D at pages 65-68 of the record being the response of the appellant to the investigation activities of the NBA Disciplinary Committee and exhibit F4(b) at page 76 of the record which is the report of the NBA Disciplinary Committee to the Legal Practitioners Disciplinary Committee headed by Alhaji Abdullahi Ibrahim (SAN).

On the issue of the appellant’s allegation that no formal charges was brought against him by the NBA before the 1st respondent’s tribunal, counsel submits that this allegation is unfounded and baseless. That the report of the NBA Disciplinary Committee headed by Chief Bandele Aiku (SAN), dated 19th October, 2001 titled “complaint of misconduct against Charles Okike Esq.” contained the “charge” which is used in the loose sense since the trial or proceedings is civil and not criminal against the appellant at paragraph 3 of the report it read thus:-

“the committee duly considered all the available materials and felt satisfied that a prima facie case of misconduct was shown against the legal practitioner. In the result, the petition and all the relevant materials are enclosed herewith.” Page 79 of the printed record.

It is submitted for the respondents that even though the “charge” or complaint against the appellant is one for professional misconduct, it is only at the conclusion of trial or proceedings that it could be said that the appellant is either guilty of infamous conduct in any professional respect or misconduct not amounting to infamous conduct which in the opinion of the disciplinary committee is incompatible with the status of a legal practitioner. That from the available unchallenged evidence before the 1st respondent tribunal, it found proved against the appellant, infamous conduct in his professional respect and consequently made a direction for the appellant’s name to be struck off the roll of legal practitioners in Nigeria. Learned Counsel for the respondents therefore urged the Court of Appeal to hold that not only was there a charge of “professional misconduct” against the appellant, the appellant knew or have reasons to know that the charge or complaint against him is for professional misconduct which could either be infamous or not infamous depending on the evidence produced at the trial or proceedings.

Further, the respondents submit that the 4th and 5th allegations that the appellant had no notice of the proceedings against him before the 1st respondent tribunal and that the 1st respondent tribunal and that the 1st respondent officials were biased against him as a result of malice are mere baseless and unfounded allegations. Indeed, the plethora of hearing notices sent by the secretary of the 1st respondent Maidama A.U. Esq. which were attached by the appellant to his application before the lower court as exhibits E, F2, F3, F4(a) F5(a) at pages 69, 73, 74, 75 and 76 of the printed record, constituted a strong admission by the appellant against his interest, that he in fact, received the hearing notices served him by the 1st respondent.

Further, neither could the appellant point out the specific malice or bias against him by any of the members of the 1st respondent tribunal before whom the appellant failed to put up a single appearance. That the allegation of bias and malice is a mere figment of the imagination of the appellant. Reference made to Udo v. Okupa (1991) 5 NWLR (Pt.191)365; Nwankwo v. Nwankwo (1995) 5 SCNJ 44 at 62-63; (1995) 5 NWLR (Pt. 394) 153.

on the allegation that the charge against him was a criminal one and that the 1st respondent’s proceedings were held in private.

Learned Counsel to the respondent contends that it is not the complaint of the 2nd respondent titled “misappropriation of a foreign client’s fund” written to the Honorable Chief Justice of Nigeria on 27th September, 2000, that the appellant was tried for before the 1st respondent’s tribunal, but for “professional misconduct” which charge arose out of the final investigation of the 2nd respondent’s complaint, report of which was given to the 1st respondent by the 3rdrespondent, pursuant to which the appellant was tried on unchallenged evidence and found guilty. That the charge of “professional misconduct” is not at all a criminal charge, but civil in nature and is akin to a charge of ‘conversion of client’s fund by a legal practitioner which is a clear professional misconduct as it is in this case where the appellant without any reason whatsoever failed to refund or account for his client’s money of $121,600 inspite of repeated demands.

Further, learned Counsel for the respondents submits that the allegation that the 1st respondent’s tribunal held its proceedings against the appellant in private contrary to section 36(3) of the 1999 Constitution is not only speculative, but lack any basis in law. That the fact that the Legal Practitioners’ Disciplinary Committee Rules provides for private sitting is not in itself proof that the 1st respondent’s tribunal in the instant appeal sat in private, while conducting the proceedings against the appellant. This is because the Court of Appeal headquarters Abuja, where the 1st respondent sat to hear the complaint is a public place. Secondly, there was no evidence at all by the appellant, who did not show up or appear before the tribunal that the 1st respondent did not allow the general public to witness the proceedings. It is the submission of the respondents that the only evidence that the appellant may adduce to proof his allegations that the 1st respondent’s tribunal sat in private is to produce the record of proceedings of the 1st respondent for examination of the court. That this vital documents even though readily available, the appellant has failed woefully to present it to the court. The respondents therefore submit that the provision of section 149(d) of the Evidence Act Cap. 112 with regard to the existence of certain facts is applicable against the appellant. The section provides that:-

“The evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.”

On the last issue of lack of jurisdiction on the part of the 1st respondent’s tribunal vehemently argued by the appellant, counsel for the respondents argues that the appellant clearly missed the point. This is so on the basis of the apparent charge for which the appellant was tried by the 1st respondent’s tribunal which was for ‘professional misconduct’ and not for ‘misappropriation of client’s fund’ as argued by the appellant. It is the submission of the respondents that by virtue of section 5 of the Criminal Code Act, 1988 and section 8 of the Interpretation Act Cap. 192, the rule in Smith v Selwyn is no longer applicable in Nigeria, which rule is to the effect that an accused person must first be tried in a criminal action before he is answerable to any civil action. That the appellant’s arguments to the effect that the 1st respondent’s tribunal should have allowed him to be criminally tried for the offence of misappropriation of his client’s fund hold no water. Reference made to Haco Ltd. v. Udeh (1959) NNLR 61; Ibekwe v. Pearce (1960) NNLR 12; Oguche v. Iliyasu & Ors. (1971) 2 All NLR 33; Veritas Insurance Co. Ltd. v. City Trust Investment (1993)3 NWLR (Pt.281) 349 at 365; A.G of the Federation & 4 Ors v. Mrs Idowu Dawodu & 7 Ors. (1995) 2 NWLR (Pt. 380) 712. Counsel to the respondents points out that the entire authorities cited by the appellant to show that the 1st respondent lacked jurisdiction are cases in respect of which the tribunal’s proceedings involves criminal allegations or offences which is not the case in the instant case.

Therefore, learned Counsel to the respondents submits that the cases of Esiagu v. University of Calabar (supra); Dr. E.O.A. Denloye v. Medical & Dental Practitioners Disciplinary Committee (supra); Federal Civil Service Commission & Ors v Laoye (supra) and Garba & Ors v. University of Maiduguri (supra) cited by the appellant were cited out of context and the facts are quite distinguishable from the present appeal and totally not applicable to this case. In totality, the respondents respectfully urges this Hon. Court to resolve the only issue formulated by the respondents in the affirmative.

In the instant appeal, the sum total of the complaint of the appellant was that he was denied fair hearing by the 1st respondent the Legal Practitioners Disciplinary Committee which tried him for the allegation of professional misconduct.

Fair hearing in all its ramification in the conduct of proceedings before courts and tribunals established is a right provided for and guaranteed by the provisions of section 36(1)(2) and (3) of the 1999 Constitution and the section provides thus:-

“S.36(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 fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.

“S.36(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.

S.36(3) The proceedings of a court or the proceedings of any tribunal relating to matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be in public.”

The main complaint of the appellant before lower court and in this appeal was that the 1st respondent tribunal- the Legal Practitioners Disciplinary Committee while trying him for the allegation of professional misconduct denied him the right to fair hearing in the followings:-

(i) that there was no investigation of the 2nd respondent’s petition or complaint by the NBA;

(ii) that there was no report of the NBA investigation of the 2nd respondent’s complaint;

(iii) that no specific charge or charges was brought against him by the NBA before the 1st respondent;

(iv) that he was never served with the notices of the proceedings before the 1st respondent; that the 1st respondent’s tribunal exhibited malice against him in the proceedings before them;

(vi) that the 1st respondent’s proceedings were done in private;

(vii) that the 1st respondent had no jurisdiction to try or hear the petition or complaint against him since same was a criminal complaint.

By the provisions of section 36(1), (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria, five requisite conditions are stipulated for fair hearing in any matter or proceedings. These are –

(1) fair hearing within reasonable time; (2) the court or tribunal must be constituted in such a manner as to secure its independence; (3) give opportunity to the person whose rights and obligations may be affected to make representation; (4) the determination of the court or tribunal must not be final or conclusive; (5) the proceedings of the court or tribunal including the announcement of decisions shall be held in public.

In the appeal at hand, since it is the appellant that complains that his right to fair hearing as guaranteed by the constitution has been denied, the onus is on him to supply evidence as required by section 137(1) of the Evidence Act Cap. 112 LFN 1990 to establish his claim to the denial of fair hearing. In an effort to establish his claim, the nature of evidence placed before the lower court by the appellant was in the form of affidavit evidence which accompanied the appellant’s application by way of motion on notice dated the 23rd day of February, 2004. Attached to the affidavit are several documents marked as exhibits, the statement in support of the application and a verifying affidavit. It is this affidavit evidence and the documents attached to it as exhibits that the court would look at and analyze and if it is satisfied that the quality of the evidence is such that which a reasonable person is bound to believe as a proof of the allegation or allegations made, it is this evidence that would now be analysed to see whether the appellant has proved his allegations of denial of fair hearing before the lower court.

The first complaint of the appellant of denial of fair hearing meted on him by the 1st respondent was that there was no investigation in law of the complaint against him by the NBA. The evidence placed before the lower court shows that there was investigation of the complaint against the appellant by the NBA. Exhibit C at page 63 of the printed record is a letter from the NBA to the appellant dated 21st May, 2001 initiating investigation against him. The letter is titled:-

“Re: petition against you for alleged professional misconduct – investigation activities.”

The letter clearly states that a copy of a petition was received against the appellant whereby certain allegations of professional misconduct have been leveled against the appellant. The letter requested the appellant to furnish the NBA with his written response to the allegation against him and be forwarded direct to the NBA disciplinary committee through its chairman. Chief Bandele Aiku (SAN). In response to exhibit ‘C’ the appellant wrote exhibit ‘D’ which is at pages 65-68 of the printed record and exhibit F4(b) at page 76 of the printed record is the report of the NBA Disciplinary Committee. It is clear from the foregoing that an investigation in respect of the complaint against the appellant was conducted by the NBA. In this regard, the learned trial Judge found rightly that there was in fact an investigation of the complaint by the NBA Disciplinary Committee headed by the 3rd respondent Chief Bandele Aiku (SAN).

This finding of fact can be seen at page 133 of the printed record where learned trial Judge rightly held thus:-

“However, the applicant avers that the respondents did not comply with rule 2(A)2 as the 3rd respondent made no investigation. This averment cannot be true having regard to his affidavit in support of the application for nforcement of fundamental right paragraphs 7, 8, 9 and 10 and exhibits C1, F4(b), F6(b) as well as the statement of the applicant. This court finds as a fact that the committee complied with rules 2(A)(2) and 4 of the Legal Practitioners (Disciplinary Committee) rules.”

By the evidence placed before the lower court and the above findings of fact by the learned trial Judge, I have no iota of doubt, that there was an investigation in law of the complaint against the appellant by the NBA and there was total compliance with the provisions of rules 2(A)(2) and 4 of the Legal Practitioners (Disciplinary Committee) Rules.

The appellant also complained that as part of denial of fair hearing to him, there is no proper report in law submitted to the 1st respondent committee by the NBA of its investigation of the complaint against him. By the evidence before the lower court, there was proper report in law submitted to the 1st respondent by the NBA of its investigation of the complaint against the appellant. This report as placed before the lower court, is exhibit F4(b) and can be seen on page 76 of the printed record and the learned trial Judge at page 133 of the printed record made a finding of fact that this report was made by the NBA to the 1st respondent – the Legal Practitioner Disciplinary Committee and I so hold.

As part of the denial of fair hearing to the appellant, the appellant complained that there was no formal charges drafted and issued by the NBA against him charging him with infamous conduct in any professional respect.

It is crystal clear by the evidence placed before the lower court that a formal charge was drafted and issued by the NBA against the appellant. This is contained in the NBA report exhibit F4(b) on page 76 of the printed record. The report is dated 19th October, 2001 and titled:-

“Complaint of misconduct against Charles Okike Esq.”

At paragraph 3 of the report it was stated thus:-

“The Committee duly considered all the available materials and felt satisfied that a prima facie case of misconduct was shown against the legal practitioner. In the result, the petition and all relevant material are enclosed herewith.”

There is no doubt that the above quoted paragraph of the NBA report contained the ‘charge’ against the appellant. The trial or proceedings conducted against the appellant is civil and not criminal; the ‘complaint’ or ‘charge’ against the appellant is one of professional misconduct. It is only at the conclusion of the trial or proceedings that it could be said that the appellant is either guilty of infamous conduct in any professional respect or misconduct not amounting to infamous conduct which in the opinion of the disciplinary committee is incompatible with the status of a legal practitioner. Besides, from the available unchallenged evidence before the 1st respondent tribunal it found proved against the appellant infamous conduct in his professional respect and consequently made a direction for the appellant’s name to be struck off the roll of legal practitioners in Nigeria, This can be seen from the proceedings of Legal Practitioners Disciplinary Committee of the Body of Benchers held on the 3rd April, 2003 at Abuja, at page 93 of the printed record. This is a clear indication that there was a charge of ‘professional misconduct’ against the appellant and the appellant knew or have reasons to know that the charge or complaint against him is for professional misconduct which could either be infamous or not infamous depending on the evidence adduced at the trial or proceedings. I therefore find as a fact, and hold that a formal charge or complaint was drafted and issued by the NBA against the appellant alleging professional misconduct against him.

Next on the appellant’s denial of fair hearing by the 1st respondent was that he was never served with the notices of the proceedings before the 1st respondent.

The evidence placed before the lower court by the appellant himself shows beyond dispute that at each sitting of the 1st respondent, the appellant is served with a notice of dates of the sitting of the Legal Practitioners Disciplinary Committee by the secretary of the committee Maidama A.U. Esq. these notices are exhibit E dated 2nd May, 2002 at page 69 of the printed record; exhibit F2 dated 19th June, 2002, at page 73 of the printed record; exhibit F3 dated 9th October, 2002 at page 74 of the printed record; exhibit F4(a) dated 30th December, 2002, at page 75 of the printed record; exhibit F5 dated 27th January, 2003, at page 77 of the printed record and exhibit F6(a) dated 20th March, 2003, at page of the printed record. All these notices were served on the appellant and he duly acknowledged the receipt of the said notices. I therefore find the complaint of the appellant that there was no proper notice in law of the proceedings of the 1st respondent served on him grossly misplaced and strange. The undisputed evidence placed before the lower court is that all notices of the various proceedings of the 1st respondent’s tribunal has been duly served on the appellant and he duly acknowledged the receipt of the notices and I so hold.

Another complaint of the appellant that he was denied fair hearing by the 1st respondent was that he wrote several letters to the respondent committee complaining about the substantial issues of jurisdiction. These letters are exhibits F, G1, G2, G3 and G4 at pages 70-71, 80-81, 82-83, 84 & 85 of the printed record. His complaint in these letters were clearly those of jurisdiction as stated by him and that the respondent committee ignored all these letters.

By the evidence adduced before the lower court by the appellant himself, it is far from the truth to claim that the 1st respondent committee ignored all his letters on the issue of jurisdiction. The 1st respondent committee through its secretary properly addressed the issue of jurisdiction raised by the appellant. By exhibit F1 at page 72 of the printed record, the respondent wrote a letter to the appellant dated 7th June, 2002, and states thus:-

Re: BB/DCNB/016 Charles Okike Esq Your letter dated 5th June, 2002, on the above subject matter refers.

I wish to inform you that the appropriate place to raise the relevant facts contained in your letter is before the committee itself on the dates mentioned in our earlier letter to you. I would therefore advice you to appear before the committee on those dates so that you could be able to raise them.

Thank you.

Signed”

By the foregoing, it is absolute that the issues of jurisdiction raised by the appellant were fully addressed by the 1st respondent Committee. If the appellant is really serious and keen on the said issues of jurisdiction he should have appeared at the proper forum to raise them so that the issues could be considered and treated on their merits. The appellant therefore, could not be heard to complain when he deliberately refused to appear before the 1st respondent committee.

Yet, another complaint of the appellant of denial of fair hearing by the 1st respondent committee was that the statement and affidavit of the appellant in the trial court are full of averments and allegations.

In the instant appeal, it is clear by the showing of the appellant and the facts as contained in the printed record before the court that the appellant deliberately refused to attend the proceedings of the 1st respondent. One is at a loss how, the appellant became aware that the proceedings of the 1st respondent was heard in private when he did not participate in the conduct of the proceedings.

The only way to proof this allegation of the appellant that the 1st respondent sat in private is through evidence probably by the production of the record of the proceedings of the 1st respondent’s tribunal for the examination of the court. However, these vital documents even though readily available, the appellant has failed woefully to present it to the court, therefore it can safely be assumed that since the appellant has failed to produce these documents, they are likely to be against him. Section 149(d) of the Evidence Act Cap. 112 provides thus:-

“That the evidence which could be and is not produced would if produced be unfavorable to the person who withholds it.”

I therefore, find no merit whatsoever in this claim of the appellant that since the rules of the 1st respondent prescribed that its proceedings shall be heard in private and the proceedings, so called against the appellant were in fact heard in private, the appellant was not given a fair trial under section 36(3) which provides that such proceedings shall be held in public.

The appellant claimed that his right to fair hearing was denied by the 1st respondent tribunal by the failure of the 1st respondent to inform the appellant of its decision of 3rd April, 2003, until they caused it to be announced on National Television is a violation of the appellant’s rights to fair hearing under section 36(1) of the Constitution.

From the facts of this case and the available evidence as contained in the record of proceedings before the court, the appellant has been served with notices of all the sittings of the 1st respondent tribunal and he deliberately refused to attend the sittings of the tribunal which he is duly aware of. If the appellant is interested in knowing the outcome of the proceedings of the 1st respondent tribunal he should have been present at its proceedings. So he cannot now turn around and claim that he has been denied his right to fair hearing as provided by section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. I therefore, find this claim of the appellant baseless and untenable.

From foregoing the only issue for determination in this appeal is resolved in favour of the respondents against the appellant.

In the final analysis, I find no merit whatsoever in this appeal. I accordingly dismiss it and affirm the judgment of Adeniyi F.A. Ademola of the Federal High Court, Kano in suit no. FHC/K/CP/7/2004 delivered on the 1st day of July, 2004. Costs of N5,000.00 is awarded in favour of the respondents against the appellant.

BA’ABA, J.C.A: I have had a preview of the judgment just read by my learned brother, Jega, JCA. He had meticulously dealt with all the issue’s canvassed before us. I agree with his reasoning and conclusions.

There is evidence before the trial Court that the appellant was served with notices of all the sittings of the tribunal, the 1st respondent, but the appellant deliberately refused to attend all the sittings of the tribunal, which he was fully aware of through the notices duly served on the appellant.

As the appellant had the opportunity to attend the sittings of the tribunal to present his own side of the case, but chose to be absent, he cannot now complain of fair hearing. See Omo vs. J.S.C (2000) 12 NWLR (Pt. 682) 444 at 456.

Fair hearing implies hearing the parties or giving them the opportunity to be heard. In Kotoye v. C.B.N (1989) 1 NWLR (Pt. 98) 419, it was held that rule of fair hearing is not a technical one. It is one of substance; the question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to fair hearing is entitled to be heard before deciding his case had in fact been given an opportunity of a fair hearing.

For these and more fuller reasons contained in the leading judgment, I too dismiss the appeal and abide by the consequential orders contained in the leading judgment.

KEKERE-EKUN, J.C.A: I have read in advance, a draft of the judgment, just delivered by my learned brother, Jega, J.C.A. He has lucidly and exhaustively dealt with all the issues in this appeal. I agree with him that the appeal lacks merit and ought to fail.

I abide by the consequential orders inclusive of costs contained in the lead judgment.

II. JUDGEMENT

Appeal dismissed.

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