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Andrew Oru V Nigerian Bar Association and Others

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Andrew Oru V Nigerian Bar Association and Others (2015)

(2015)LCN/7890(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of June, 2015

CA/L/586/2009

RATIO

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ANY ADJUDICATION AND WHEN THE ISSUE OF JURISDICTION MUST BE RAISED

The question of jurisdiction is very fundamental to any adjudication. It is trite law that the issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. Ukwu vs Bunge (1997) 8 NWLR (Pt.518) Pg 527; Jeric Nig Ltd vs. UBN Plc (2000) 12 SC (Pt II) Pg 133; AG Lagos State vs. Dosunmu (1989) 3 NWLR (Pt III) Pg 352; Nnonye vs. Anyichie (2005) 2 NWLR (Pt.910) Pg 623. It is well settled that a Court as well as any tribunal or panel or committee, as the case may be, is competent only when it is properly constituted as regards members and qualifications of members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It, therefore, means that where a Court or panel or committee has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings were conducted. Umanah vs. Attah (2006) 17 NWLR (Pt 1009) Pg 503; Madukolu vs. Nkemdilim (1962) 1 ALL NLR Pg 587; Skenconsult vs. Ukey (1981) 1 SC Pg 6; Benin Rubber Producers Ltd vs. Ojo (1997) 9 NWLR (Pt.521) Pg 388: Alao vs ACB Ltd (2000) 6 SC (Pt.1) Pg 27; Galadima vs. Tambai (2000) 6 SC (Pt.1) Pg 196; Araka Vs. Ejeagwu (2000) 12 SC (Pt.1) Pg 99. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: JURISDICTION; HOW TO DETERMINE WHETHER A COURT HAS JURISDICTION TO ENTERTAIN A MATTER

To determine whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. Gafar vs. Government of Kwara State (2007) 4 NWLR Pt.1024 pg.375, Onuorah vs. KRPC (2005) 6 NWLR Pt.921 pg.393, Tukur vs. Government of Gongola State (1989) 4 NWLR pt.117 pg.517, Nkuma vs. Odili (2006) 6 NWLR Pt.977 pg.587. In order to determine whether an issue of jurisdiction is genuinely raised, the court will examine the grounds of appeal and the whole proceedings which gave rise to the appeal. See PDP vs. Abubakar (2007) 2 NWLR pt.1018 pg.303. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

CHIEF ANDREW ORU Appellant(s)

AND

  1. NIGERIAN BAR ASSOCIATION
  2. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
  3. MOSES ODDIRI ESQ Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Lagos Division delivered by Okechukwu Okeke J. on the 30th of March, 2009. The 1st Applicant now Appellant in this appeal, on the 23rd of May, 2008 filed an application for the enforcement of his Fundamental Rights against the Respondents at the Court below seeking the following reliefs:-

  1. A declaration that in the exercise of its functions in respect of the powers conferred on it by virtue of the provisions of the Legal Practitioners Disciplinary Committee Rules 2006 as concerns the professional conduct of its members, the 1st and/or 2nd Defendants/Respondents is/are bound to observe the rules of fair hearing as enshrined under S.36 of the 1999 Constitution of the Federal Republic of Nigeria, and that the non-observance of same in the circumstances of this case renders all its/their actions in relation thereto, illegal, unconstitutional, null and void and of no effect whatsoever, as it/they violate(s) the respective Applicants’ fundamental rights to fair hearing.
  2. A declaration that having violated the respective applicants’ rights to fair hearing in the conduct of its/their proceedings in relation to the purported acts of professional misconduct of the Plaintiffs/Applicants as contained in the complaint brought against them by one Lanre Ipinmisho vide his letter dated 27th January 2005, all steps taken by the 1st and/or 2nd Defendants/Respondents in relation thereto are illegal, unconstitutional, null and void and are liable to be quashed forthwith.
  3. A declaration that specifically, the entire proceedings conducted by the 1st Defendant/Respondent by way of investigating the complaint of professional misconduct forwarded by one Mr. Lanre Ipinmisho vide his letter dated 27th January 2005, but which was received by the 1st Defendant/Respondent on the 9th of March 2005, was fraught with cash-induced/politically induced malice, bias, unfair-hearing and witch hunting, and thus unconstitutional, illegal, null and void and liable to be brought before this Honourable Court for the purpose of getting same quashed forthwith.
  4. A declaration that the finding of a prima-facie case of professional misconduct against the Plaintiff/Applicants by the 1st Defendant/Respondent as contained in its letter dated 11th July, 2005 forwarded to the 2nd Defendant/Respondent was in bad faith and arrived at in violation of the respective rights of the Plaintiffs/Applicants to fair hearing, and thus liable to be quashed forthwith and also thus cannot form the basis for any action(s)/proceedings by the 2nd Defendant/Respondent.
  5. A declaration that in exercise of its functions as related to the rules of professional conduct in the legal profession, the current law that gives the 2nd Defendant/Respondent jurisdiction to commence/preside over proceedings thereof, is the Legal Practitioners Act, 2004, Laws of the Federal Republic of Nigeria, L.11 2004 as approved/given effect by the Revised Edition (Laws of the Federation of Nigeria) Act 2007, and which provides that only the Attorney General of the Federation (or only the Solicitor General, if so delegated by him/her) shall be the Chairman thereof.
  6. An order of Court directing the 1st Defendant, to, within 7 days or as the Honourable Court may otherwise direct, bring into court, for the purpose of same being quashed; its disciplinary committee’s proceedings dated 24th June, 2005.
  7. A declaration that all proceedings of the 2nd Defendant/Respondent till date in relation to the purported findings of the 1st Respondent as contained in the 1st Defendant/Respondents letter dated 11th July 2005 have no legal basis whatsoever and are liable to be quashed forthwith, as the 2nd Defendant/Respondent was illegally/unlawfully/improperly constituted, and/or also for proceeding on the basis of the unconstitutional findings of the 1st Defendant/Respondent, and further, for conducting its proceedings in violation of the Applicants rights to fair hearing respectively.
  8. An order of declaration of court that the Defendants’ action(s) in totality in relation to the subject matter of this suit are inconsistent with the provisions of S.36(1) and 39(1) of the 1999 Constitution of the Federal Republic of Nigeria and therefore, illegal, null and void and of no consequence whatsoever.
  9. An order of court of Certiorari quashing/setting aside all the proceedings/actions of the Defendants/Respondents as related to the complaints of professional misconduct against the Plaintiff/Applicants especially as contained in (but not limited to) the letter/attachments of the 1st Defendant/Respondent dated 11th July 2005 and all proceedings related to/the decision of the 2nd Defendant/Respondent as contained in its DIRECTION dated/delivered on the 21st April, 2008, all of which are attached to the affidavit in support of this Motion on Notice.
  10. An order of court granting leave to the Applicants to serve the orders of this Honourable Court on all the persons/offices, notice to which the DIRECTION of the 2nd Defendant/Respondent dated 21st April, 2008 was given therein.”

A preliminary objection was raised by the Defendants/Respondents on two grounds, viz; 1. The suit is an abuse of court process and 2. The court lacks jurisdiction to determine this suit. In its ruling, the Federal High Court held that the suit is not an abuse of court process as the instant case was filed first but declined jurisdiction to hear the matter on the ground that the subject matter which is legal practice and discipline of legal practitioners do not fall within the exclusive jurisdiction of the Federal High Court as provided in Sec. 251 of the 1999 Constitution of the Federal Republic of Nigeria. However, the court acknowledged the fact that the claim is on denial of fair hearing. The Federal High Court expressed the view that the only option open to the Applicants is to appeal to the Supreme Court.

The Appellant was dissatisfied with the decision of the Federal High Court and hence this Appeal. It is important to note that whereas there were 2 Applicants at the Federal High Court, only the 1st Applicant filed a Notice of Appeal to this Court who is therefore referred to as the Appellant in this Appeal. Strictly speaking, the 2nd Applicant whose name appeared as an Appellant in this Appeal did not file a Notice of Appeal and therefore his name should appear as a Respondent in this Appeal and shall henceforth be referred to as the 3rd Respondent.

The Appellant’s Notice of Appeal was filed on 17th of April, 2009 consisting of two grounds of appeal. The appeal was heard and judgment reserved on the following briefs: the Appellant’s brief of argument filed on 12th of August, 2009; the 1st Respondent’s brief of argument filed on 12th of March, 2012 but deemed properly filed on 25th of February, 2012: and the 2nd Respondent’s further amended brief filed on 24th of October, 2013 but deemed properly filed on 20th of March, 2014. No brief of argument was filed by the 3rd Respondent. Also no reply brief was filed by the Appellant.

From these grounds of appeal, the appellant has distilled the following two (2) issues for determination of this Court viz:-
“1. Whether the Federal High Court was right in finding that it had no jurisdiction to entertain the subject matter of the suit.

  1. Whether the Federal High Court was right when it held that the issues in the substantive case that is want of jurisdiction and lack fair hearing ought to be the subject of appeal to the Supreme Court when the extant law applicable, Legal Practitioners Act 2004 does not provide an appeal direct to the Supreme Court and the Supreme Court has no original Jurisdiction to entertain claims for enforcement of fundamental human rights and fair hearing.”

The 1st Respondent on his part formulated two (2) issues for determination in this appeal. They are as follows:-
“1. Whether the Lower Court has jurisdiction to entertain the Appellant’s Suit?

  1. Whether the learned judge was right to hold that the Appellant could not challenge the composition of the 2nd Respondent at the Federal High Court; but by way of an appeal to the Supreme Court”

The 2nd Respondent on his part also formulated two (2) issues for determination in this appeal. They are as follows:-
“1. That based on the proceedings and decision of the Legal Practitioners Disciplinary Committee on its disciplinary jurisdiction within the legal profession, was the Federal High Court the appropriate forum to seek redress against the Directions of the Legal Practitioners Disciplinary Committee.

  1. Whether the 2nd Respondent based on its constitution predicated on the Legal Practitioners Act as amended by Decree 21 of 1994, was the 2nd Respondent properly constituted in law, when it tried the Appellants, in view of the omission to incorporate the above amendments by Legal Practitioners Act (Decree 21, 1994) in the Revised edition of the Laws of the Federation of Nigeria, 2004.”

It is clear from the issues as formulated that issue No. 1 and issue No. 2 raised by all parties are inter-related and shall be dealt with together. However, before discussing the issues formulated by the parties, I will like to point out that, the 1st Respondent’s Counsel raised an objection that the Appellant has failed to indicate how the issues he submitted were distilled from the Grounds of Appeal. He cited the case of Zabusky vs. Israeli Aircraft Industries (2008) 2 NWLR (Pt.1070) page 109, where the Grounds were deemed abandoned as the Appellants failed to relate their issues to the Grounds of Appeal. He then urged the Court to hold same.

Issue 1
The Appellant’s Counsel, M.A. Agbamuche, submitted that based on the provision of Sec 46 of the 1999 Constitution, a High Court of a State [whether Federal or State] has the original jurisdiction to entertain any matter arising from the breach of Fundamental Right as guaranteed under Chapter 4 of the 1999 Constitution. Based on the above provision, it was right for the Appellant whose right to fair hearing (guaranteed under chapter 4) was breached by the 1st and 2nd Respondents at the investigative and trial stages to have instituted a Fundamental Right action at the Federal High Court. Also, Counsel submitted that in order to determine jurisdiction, the Court is to look at the claim or relief sought by the applicant. He relied on the case of Tukur vs. Governor of Gongola State (1989) 4 NWLR 515. In this case, looking at the facts and reliefs, it is clear that the main claim of the Appellant is the enforcement of his Fundamental Right to fair hearing. The Trial judge pointed out in his judgment at pages 359 – 375, particularly at page 373, but however went further to decline jurisdiction on the ground that the regulation of the practice of the legal profession and discipline of legal practitioners are not within the subject matter jurisdiction of the Federal High Court.

The 1st Respondent on the other hand submitted that, the Lower Court was right to have declined jurisdiction since the Federal High Court lacked jurisdiction on two grounds viz;

  1. Enforcement of fundamental rights was not the Appellant’s Principal Claim before the Lower Court. Even if it was, it was still intrinsic to an appeal to the Supreme Court.
  2. Regulation of Legal Practice and Disciplining of Legal Practitioners, which were the Principal Claims, were not within the jurisdiction of the Federal High Court.

To support the fact that the Appellant’s principal claim was ground two above, Counsel submitted that (relief 5 of the Application for Enforcement of Right at page 383 of the Supplementary Record or Relief E of the Motion Exparte on page 271 of the Record) the Appellant challenged the qualification of the Chairman of the 2nd Respondent, when it sat over his case. Also the Appellant challenged the Constitution of the 2nd Respondent. See Relief 7 page 383 of the Supplementary Record and Relief G of the Motion Ex parte on page 272 of the Record. Thus, he urged the Court to resolve Issue No. 1 in favour of the 1st Respondent.

The 2nd Respondent’s Counsel on his part, submitted that, the Appellant’s Claim (denial of fair hearing) arose wholly out of the proceedings conducted by the 2nd Respondent and as such, the Appellant was to have come by way of an appeal to the Supreme Court and not by filing a Fundamental Right Enforcement suit at the Federal High Court to quash the Direction of the 2nd Respondent. He relied on the provisions of Sec 12 of the Legal Practitioners Act (as amended), Sec 233 (1), Sec 232 (1 & 2) of the 1999 Constitution and on the Supreme Court authority of Okike vs. Legal Practitioners Disciplinary Committee (NO.1) (2005) 3-4 S.C, page 49.

ISSUE NO.2
The Appellant’s Counsel submitted that the extant law is the Legal Practitioners Act 2004 LFN L.11 and not the Legal Practitioners (Amendment) Act 1994 relied upon by the trial judge, as same had been expressly repealed by Section 3 of the Revised Edition (Laws of the Federation of Nigeria) Act 2007. That by Section 11(7) of the Legal Practitioners Act LFN L.11, appeals lie from the LPDC to the Appeal Committee of the Body of Benchers and not the Supreme Court. Also that, the Supreme Court decision in the case of Okike vs. Legal Practitioners Disciplinary Committee (supra) has been overtaken by event (in view of the revocation of the Legal Practitioners Act 1990). He also emphasized that a High Court has original jurisdiction to hear Fundamental Human Right action and there is no way the Appellant could have brought such action to the Supreme Court directly.

The 1st Respondent’s Counsel submitted that the exclusion of the Legal Practitioners Amendment Act 1994 from the Revised Edition (Laws of the Federation) Act 2007 does not imply that the said Law has been repealed. It is trite that Statutes are not repealed by inference or implication but by direct provision of the Law. He relied on the case of Ibidapo vs. Lufthansa Airline (1997) 4 NWLR (Part 498) 124 @ 162 D – F. Counsel went further to say that such exclusion can only be regarded as an omission since there is no express provision of the contrary. Section 2 of the Revised Edition (Laws of the Federation) Act 2007 provides that any inadvertent omission, alteration or amendment of any existing statute shall not affect the validity and applicability of the Statute. Thus the Legal Practitioners [Amendment) Act 1994 is subsisting. Therefore, the trial judge was right to hold that an appeal from the Direction of the LPDC lies to the Supreme Court. Section 11 of the LPA (Amendment) Act. He urged the court to resolve issue No. 2 in favour of the 1st Respondent.

The 2nd Respondent’s Counsel argument on issue No. 2 is similar to that of 1st Respondent’s Counsel.

In addition, the 2nd Respondent’s Counsel submitted that the Supreme Court in the following cases had upheld the existence and continued validity of the Legal Practitioners (Amendment) Act viz;

  1. Eke Umazi Ndukwe vs Legal Practitioners Disciplinary Committee (2007) 5 NWLR (Pt.1026) Pages 1 – 59
  2. Amelechi Iteogwu V. Legal Practitioners Disciplinary Committee (2009) 17 NWLR (Pt 1171) Page 614.

This appeal was reheard at the instance of the Court which brought to the notice of the counsel, the recent decision of the Supreme Court in the case of Akintokun vs. Legal Practitioners Disciplinary Committee (2014) 13 NWLR (Pt 1423) pg 1 which it contends had serious bearing to the case. Whereupon the court ordered parties to file supplementary briefs to address the court on the implication of the said case. In compliance with the order of court, the Appellant’s supplementary brief was filed on 20th of November, 2014 while the 1st Respondent’s supplementary brief was filed on 26th of November, 2014 and the 2nd Respondent’s supplementary brief was filed on 25th of November, 2014.

The Appellant in its supplementary brief raised 2 issues for determination. They are as follows;

  1. Whether in view of the decision of the Supreme Court in Akintokun vs. Legal Practitioners Disciplinary Committee, there is any further doubt that it is Section 10 of the Legal Practitioners Act, CAP L.11, Laws of the Federation of Nigeria 2004 that is the extant law.
  2. If issue one above is decided in the affirmative, whether the Appellant was therefore tried by an improperly constituted tribunal, Which consequently amounted to the infringement of the Appellant’s Fundamental Right to fair hearing and rendered the proceedings and decision of the tribunal a nullity?

The 1st Respondent on its part formulated a sole issue for determination viz;
“Whether the present appeal should be allowed in view of supreme court’s recent decision in Akintokun’s case?”

The 2nd Respondent on its part raised one issue for determination viz:
“What is the effect of the decision of the Supreme Court in the case of Rotimi Williams Akintokun v Legal Practitioners Disciplinary Committee (2014) 13 NWLR (Pt.1423) pg 1 to the facts of this current appeal.”

The issue framed by the Respondents adequately captures the complaint and shall be used in the determination of this appeal.

It is the contention of learned counsel for the Appellant that the conflicts regarding which Law is extant, that is Decree No. 21 of 1994 or Legal Practitioners Act, CAP L.11 LFN 2004 has been settled by the Supreme Court in the case of Akintokun vs LPDC (supra) @ pg 87-89 para D-G where I.T. Muhammed JSC who opined categorically that it is L11 2004 LFN that is the valid and existing law. If that is so, then Sec 10(2)(a) of Legal Practitioners Act L.11 LFN 2004 provides that:
“The Attorney General of the Federation shall be the chairman of the disciplinary committee.”

It is the case of the Appellant that the Disciplinary Committee that tried him was improperly constituted, as a person other than the Attorney General was named as the Chairman of the Disciplinary Committee. Therefore, the Committee lacked jurisdiction and the trial before that Committee is an infringement of his Fundamental Human Right to fair hearing. Thus the Federal High Court had the jurisdiction but failed to exercise the jurisdiction by wrongly relying on CAP 21 1994.

On the other hand, learned Counsel for the 1st Respondent contends that the decision in Akintokun’s case is to the effect that appeals against decision of the LPDC does not lie to the Supreme Court but to the Appeal Committee of Body of Benchers. This does not support the position of the Appellant in this present case, who is seeking to set aside the decision of the LPDC by going to the Federal High Court instead of appealing. He concluded that the Federal High Court was right in declining jurisdiction to entertain the case in view of the fact that the case was wrongly couched as the Fundamental Human Right claim when in actual fact the Appellant is challenging the composition of the LPDC, a matter which ought to be properly raised in an appeal before the Appeal Committee in line with the decision of the Supreme Court in Akintokun’s case.

The Learned counsel for the 2nd Respondent on its part contends that the effect of the recent decision in Aladejobi vs Nigeria Bar Association (2013) 15 NWLR (Pt 1376) Pg 66 and Akintokun’s case (supra) is that the LPDC that tried the Appellant was improperly constituted as the composition was contrary to the provision of Section 10(2)(a) of The Legal Practitioners Act L.11 LFN 2004. It is his further contention that his trial by LPDC so improperly constituted is an infringement of the Appellant’s right thereby agreeing with the contention of the Appellant in the Appellant’s supplementary brief.

The issues for determination has been streamlined with the decision in Akintokun’s case. The issue here is which was the extant law at the time Akintokun’s case was decided by the Legal Practitioners Disciplinary Committee (LPDC)?

Under Section 12 of the Legal Practitioners Act, 1975 an appeal against the direction of the Legal Practitioners Disciplinary Committee (LPDC) could only lie to the Appeal Committee of the Body of Benchers. The provisions under the 1975 Act were reenacted by the compilers of the laws of the Federation in the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990.
However after the decision in LPDC Vs. Gani Fawehinmi (1985) 2 NWLR (Pt.7) Pg.300, several amendments were made to the Legal Practitioners Act which culminated in the Legal Practitioners (Amendment) Act, Decree 21 of 1994. This Amendment inter alia provided for appeals to lie directly from the Disciplinary Committee to the Supreme Court by virtue of Section 10 of the Amendment Act which amended Section 12(7) of the Principal Act of 1990.
The Legal Practitioners (Amendment) Act, Decree No. 21 of 1994 also inserted a new Section 11 to the Principal Act, Cap 207 LFN 1990 which provided for the new composition of the members of the Disciplinary Committee to include, a chairman who shall not be either the Chief Justice of Nigeria (CJN) or a Justice of the Supreme Court amongst others.
The applicability of the amendment made by Decree 21 of 1994 to the LFN, 1990 in the discipline of lawyers came before the Supreme Court in the case of Charles Okike vs. LPDC (No 1) (2005) 3-4 SC Pg 49. The full court considered the constitutionality of Section 12(7) of the Legal Practitioners Act, Cap 207, 1990 (as amended by Section 10 of Decree 21). The Supreme Court on the sole issue of jurisdiction to receive appeals directly from the 2nd Respondent (LPDC) considered the provisions of Section 233 of the 1999 Constitution vis-a-vis Section 12(7) of the Legal Practitioners Act, Cap 207 LFN 1990 (as amended), and held that the Supreme Court has the jurisdiction to hear appeals directly from the LPDC.
The Supreme Court held as follows:
“in my own opinion, the provisions of Section 233(1) of the 1999 Constitution have not in any way ousted the jurisdiction either expressly or impliedly of the Supreme Court to hear appeals from the Disciplinary Committee. Therefore in the absence of any express provision in the Constitution which ousts the jurisdiction of the Court, we should be very reluctant to hold that the jurisdiction has been ousted…It follows from all the foregoing that the Court amply has the jurisdiction to hear the present appeal from the Disciplinary Committee. I therefore so hold.”
Subsequently after the decision in Okike (No 1) (supra), the Supreme Court also entertained appeals directly from the directions or judgment of the Legal Practitioners Disciplinary Committee in the following cases of:
a) Okike vs LPDC (No 2) (2005) NWLR (Pt 949) Pg 471.
b) Eke Umazi Ndukwe vs LPDC (2007) 5 NWLR (Pt.1026) Pg 1-59
c) Amelechi Iteogu vs LPDC (2009) 17 NWLR (Pt.1171) Pg 614
In the compilation of (2004) LFN, the Law Reform Committee inadvertently omitted or ignored the very all important amendments made by the Legal Practitioners (Amendment) Act, Decree No. 21, 1994 same of which were the composition of the LPDC and the Court conferred with the jurisdiction to entertain appeals from the direction (judgment) of the LPDC.
Despite this inadvertent omission in the compilation of the 2004 Laws of the LFN, the LPDC continued to function under the provisions of the 1994 Amendment Act. The LFN 2004 compiled in year 2004 was only enacted into law by the Revised Edition (LFN) Act, 2007.
In Aladejobi vs. NBA (2013) 15 NWLR (Pt.1376) page 66 (delivered on 12th of July, 2013), the Supreme Court upheld the Preliminary Objection of the Respondent and held that it had jurisdiction to entertain the appeal brought directly by the Appellant from the Disciplinary Tribunal to the Supreme Court. The Supreme Court did not, however, consider the issue of the co-existence of two conflicting laws by the same law makers and on the same subject matter. The Supreme Court nevertheless held as follows:
“From a clear reading of the above reproduced Section 12(1) of the Act, it is basic that there must be in place the Appeal Committee of the Body of Benchers which is charged with the duty of hearing appeals from any direction given by the Disciplinary Committee. It is clear to me that the Appellant herein cannot appeal direct to this Court against the directions handed out on 22nd February, 2011 by the Disciplinary Committee without first appealing to the Appeal Committee of the Body of Benchers. It hardly needs any gainsaying that the appeal of the Appellant direct in this court without going through the Appeal Committee of the Body of Benchers is incompetent. This Court has no jurisdiction to entertain same.”

From the foregoing it appears that the trial Judge relied on the 1994 Act rather than the 2004 Act enacted into law by the Revised Edition (LFN) Act 2007.

Under the 2004 Act enacted into law in 2007, Section 10(2)(a) Legal Practitioners Act LFN provides as follows:
“The Attorney General of the Federation shall be the chairman of the disciplinary committee.”

The Appellant in this appeal had instituted an action in the Court below that the Respondents had breached his fundamental Right of fair hearing. He claimed he was tried by a committee unknown to law.
The committee was improperly constituted as somebody other than the Attorney General of the Federation was its chairman. Therefore, the committee infringed on the rights of the Appellant. Where a committee is improperly constituted, it goes to the roots of its jurisdiction.

The question of jurisdiction is very fundamental to any adjudication. It is trite law that the issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. Ukwu vs Bunge (1997) 8 NWLR (Pt.518) Pg 527; Jeric Nig Ltd vs. UBN Plc (2000) 12 SC (Pt II) Pg 133; AG Lagos State vs. Dosunmu (1989) 3 NWLR (Pt III) Pg 352; Nnonye vs. Anyichie (2005) 2 NWLR (Pt.910) Pg 623.

It is well settled that a Court as well as any tribunal or panel or committee, as the case may be, is competent only when it is properly constituted as regards members and qualifications of members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It, therefore, means that where a Court or panel or committee has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings were conducted. Umanah vs. Attah (2006) 17 NWLR (Pt 1009) Pg 503; Madukolu vs. Nkemdilim (1962) 1 ALL NLR Pg 587; Skenconsult vs. Ukey (1981) 1 SC Pg 6; Benin Rubber Producers Ltd vs. Ojo (1997) 9 NWLR (Pt.521) Pg 388: Alao vs ACB Ltd (2000) 6 SC (Pt.1) Pg 27; Galadima vs. Tambai (2000) 6 SC (Pt.1) Pg 196; Araka Vs. Ejeagwu (2000) 12 SC (Pt.1) Pg 99.

The Appellant in his suit in the court below claimed inter alia in:

  1. A declaration that in exercise of its functions as related to the rules of professional conduct in the legal profession, the current law that gives the 2nd Defendant/Respondent jurisdiction to commence/preside over proceedings thereof, is the Legal Practitioners Act, 2004, Laws of the Federal Republic of Nigeria, L.11 2004 as approved/given effect by the Revised Edition (Laws of the Federation of Nigeria) Act 2007, and which provides that only the Attorney General of the Federation (or only the Solicitor General, if so delegated by him/her) shall be the Chairman thereof,
  2. An order of Court directing the 1st Defendant, to, within 7 days or as the Honourable Court may otherwise direct, bring into court, for the purpose of same being quashed; its disciplinary committee’s proceedings dated 24th June, 2005.

These reliefs in particular sought to quash the direction of the committee of LPDC that decided his case as the committee was improperly constituted.

An objection to the jurisdiction of a court can be raised in any manner whatsoever i.e.
a) On the basis of the statement of claim; or
b) On the basis of evidence received;
c) By motion supported by affidavit setting out the facts relied on; or
d) On the face of writ of summons where appropriate as to the capacity in which the action was brought or against who the action was brought. See GTB Plc Vs. Fadco Industries Ltd (2005) ALL FWLR (Pt.287) Pg 913; Nnonye vs Anyichie (supra); NDIC vs CBN (2002) 7 NWLR (Pt 272) Pg _; Arjay Ltd vs. Airline Management Support Ltd (2003) 2 SCNJ Pg.148.

To determine whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. Gafar vs. Government of Kwara State (2007) 4 NWLR Pt.1024 pg.375, Onuorah vs. KRPC (2005) 6 NWLR Pt.921 pg.393, Tukur vs. Government of Gongola State (1989) 4 NWLR pt.117 pg.517, Nkuma vs. Odili (2006) 6 NWLR Pt.977 pg.587.

In order to determine whether an issue of jurisdiction is genuinely raised, the court will examine the grounds of appeal and the whole proceedings which gave rise to the appeal. See PDP vs. Abubakar (2007) 2 NWLR pt.1018 pg.303.

The Appellant in this appeal had originally being tried by the LPDC and direction was handed down. Instead of going on appeal to the Body of Benchers Appeal Committee under the Legal Practitioners Act, Cap L.11 LFN 2004, the Appellant filed an action under the Fundamental Rights. The trial court declined jurisdiction and held that the Practice of the Legal Profession and the discipline of Legal Practitioners are not within the subject matter jurisdiction of the Federal High Court.

This appeal did not stricto senso come on appeal from the direction of the LPDC but from the suit in the Lower Court challenging the LPDC on their Fundamental Rights as the LPDC was not properly constituted.

The courts have held that one of the ingredients for jurisdiction is the composition of the panel. The Appellant complained vigorously that the LPDC which tried him was improperly constituted. Mr Andrew Oru was tried by LPDC in 2008, a body unknown to Law effective from the 25th of May, 2007 (when the Laws of the Federation of Nigeria came into force), and in breach of his constitutional right to fair hearing.

The Supreme Court in the case of Akintokun (supra) per I.T. Mohammed JSC held that the Revised Edition [LFN) Act 2007 is an Act to enable effect to be given to the Revised Edition of the Laws of the Federation, 2004 with the commencement date of 25th of May, 2007. This means that all directions of the LPDC prior to the commencement of the 2004 Edition of the Law of Federation of Nigeria up to 2007 remains valid.

Supreme Court also held that by virtue of Section 12 of the Legal Practitioners Act Cap L.11, 2004, all appeals from the directions (judgment) of the LPDC shall lie to the Appeal Committee of the Body of Benchers which shall be charged with the duty of hearing appeals from any direction given by the Disciplinary Committee. See Akintokun’s case (supra).

The decision in Akintokun case implies that the law governing the discipline of lawyers is now back to its former state prior to the decision of the Supreme Court in LPDC vs. Chief Gani Fawehinmi case (supra) where the AGF as Chairman of the Disciplinary Committee is charged with the duty of considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under the Act. See Section 10(1) of the Legal Practitioners Act Cap L.11 LFN 2004.

The provision relating to the Discipline of Lawyers in the Laws of the Federation of Nigeria 2004 is impari material with the Laws of the Federation of Nigeria, 1975 which was Re-enacted as LFN 1990.

The Supreme Court’s Judgment in Akintokun’s case emphatically held that Decree 21 of 1994 was repealed when the Laws of the Federation of Nigeria 2004 came into effect by virtue of the Revised Edition (LFN) Act, 2007.
The Legal Practitioners Disciplinary Committee is a creation of Decree 21 of 1994 and deemed to have been repealed by the 2007 Act, which came into effect on 25th of May, 2007.
The Appellant Mr. Andrew Oru was tried by the Legal Practitioners Disciplinary Committee in 2008 after the coming into effect of the 2007 Act. This in effect means that the Appellant was tried by a panel wrongly headed by someone who is not the Attorney General of the Federation as envisaged by Section 10(2)(a) of the Legal Practitioners Act L.11 LFN 2004 which provides:
“The Attorney General of the Federation shall be the chairman of the Disciplinary Committee”.
The Appellant was, therefore, tried by a panel that was wrongly headed, thereby, had no jurisdiction whatsoever to try the Appellant. Once a panel is disqualified as to its membership, it lacks the necessary vires to continue. Where a panel has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings were conducted. Umanah vs. Atta (supra), Madukolu vs. Nkemdilim (supra), Skensconsult vs. Ukey (supra), Galadima vs. Tambai (supra), Araka vs. Ejeagwu (supra).

Mr. Andrew Oru, the Appellant, was tried by a panel not properly constituted. It, therefore, means that the panel was incompetent. All the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsive but extrinsive to the entire process of adjudication.

The direction reached by the panel remains a nullity. Therefore, the Appellant was tried by the panel without jurisdiction. The direction/judgment reached by the Panel remains a nullity.

The Appellant was not accorded a fair trial and thereby breached his Fundamental Rights of fair hearing.

I, therefore, hold that the direction of the Legal Practitioners Disciplinary Committee was a nullity. It is hereby upturned.

TIJJANI ABUBAKAR, J.C.A.: My learned brother Ndukwe-Anyanwu JCA; granted me the privilege to read in draft the lead Judgment just delivered. I agree and adopt the Judgment as my own with nothing useful to add.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the judgment just delivered by my learned brother, U.I. NDUKWE – ANYANWU JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.

The judgment considered all the issues distilled by the parties and it leaves no room for me to add anything. I also set aside the direction of the Legal Practitioners Disciplinary Committee for breaching the right to fair hearing which is fundamental. I also abide by the orders made in the lead judgment.

Appearances

Chief M. A. Agbamuche, Mrs E. Osoka, Mrs M. Agbamuche-Mbu, Miss Simi Washpam (Miss) For Appellant

AND

Chinedu Nneke, Dele Oye, Chukwuma Njoku For Respondent

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