The Power of the Supreme Court to Entertain Appeals Directly from the Legal Practitioners Disciplinary Committee, the Case of Akintokun v LPDC Revisited[1]
B.A. Oloworaran* and E.U. Oloworaran**
Abstract
The Legal Practitioners’ Disciplinary Committee is the body armed with the power to adjudicate as of first instance on issues bordering on the discipline of legal practitioners. The constitution of the LPDC, its powers and the right of appeal from its decisions are issues much debated about. Decisions of the apex court as well as juridical opinion on the issues appear not to have offered a permanent resolution to the issues, paramount amongst which is the judicial body with the power to entertain appeal from the decision of the LPDC. This paper considers the laws relevant to the issue, the decisions of the courts as well as the available legal literature to reach a conclusion that whereas the decision in Akintokun’s case was reached in error, there is the need for an amendment to the Legal Practitioners Act to rectify the anomalies presently existing in the disciplinary structure of legal practitioners.
1. Introduction
The discipline of legal practitioners is very crucial to the sustenance of the legal profession and by extension the effective delivery of justice in any society. Commencing from the colonial era,[2] there had been effective and effectual legal mechanisms for the regulation and discipline of legal practitioners.
However, the continuous and incessant tinkering with the legal provisions relating to the regulation and discipline of legal practitioners by the legislature has not only left the legal regime nebulous,[3] it has rendered the discipline for professional misconduct in the legal profession rather wanting and question the legitimacy of the LPDC as presently constituted. Separate decisions by the apex court rather than clarify the challenges and issues arising from the contradictory provisions of the extant laws, have not only complicated the situation, but made any means of easy reconciliation difficult.
The moves thus far made by the executive to deal with confusion created by the contradictory laws and the position taken by the Supreme Court appeared to have misconceived the whole challenge posed by the laws and the decisions. All these call for a thorough academic analysis on the real position as regards the discipline of legal practitioners in Nigeria.
2. The Power of the Supreme Court to entertain appeal from other courts or tribunals other than the Court of Appeal
The jurisdiction of the Supreme Court to determine cause is grouped into original and appellate capabilities. As regards the original jurisdiction of the Supreme Court, the Constitution is explicit as to the sources.
The Constitution itself serves as the organic source of the original jurisdiction of the Supreme Court.[4] In addition, thereto, the Constitution devolves the potency of enlarging the original jurisdiction of the Supreme Court to the National Assembly,[5] save that it excludes such enlargement of the original jurisdiction from extending to criminal matters.[6]
As regards the appellate jurisdiction of the Supreme Court, the Constitution made no explicit devolution of power to the National Assembly; rather, it only asserts the appellate jurisdiction of the Supreme Court to encompass the determination of appeals from the Court of Appeal to the exclusion of any other court.[7]
Even though the draftsman utilisation of legislative diction as it relates to the appellate and original jurisdiction of the Supreme Court differs, one may not conclude strictly, based on the provisions of section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN), as amended, that the possibility of the National Assembly, by law, enlarging the Appellate jurisdiction of the Supreme Court is proscribed. Howbeit, there is nothing within that section to conclude that it is proscriptive or that it intends the entertainment of appeals from only the Court of Appeal by the Supreme Court.
Conveniently, one may rely on some other provisions of the Constitution to advance an argument in favour of the possibility of the conferment of additional appellate jurisdiction on the Supreme Court by an Act of the National Assembly. Section 234 of the Constitution states:
For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any Law…
“Any jurisdiction” as used above convincingly accommodates original, appellate and even concurrent jurisdiction. “Any jurisdiction” is liberal enough to accommodate which ever form of jurisdiction conferred on the court, either by the Constitution or by law (in this case, an Act of the National Assembly). One may therefore posit that the Constitution foresees the possibility of law providing for additional appellate jurisdiction for the Supreme Court.
The provisions of the Legal Practitioners (Amendment) Decree No. 21 of 1994 is one of such instances where the Supreme Court has power to hear an appeal directly from the decision of a tribunal, in this case, the Legal Practitioners Disciplinary Committee as prescribed by law.[8]
3. Direct Appeal from the Legal Practitioners Disciplinary Committee (LPDC) to the Supreme Court
The Legal Practitioners (Amendment) Decree No. 21 of 1994 provides that appeal from the LPDC lies directly to the Supreme Court. This provision was the basis of the Supreme Court entertaining a direct appeal from the LPDC in the case of Okike v LPDC (No. 1).[9]
Prior to Decree No. 21 of 1994, the regime regulating the discipline of legal practitioners was as provided for by the Legal Practitioners Act No. 15 of 1975;[10] which was “an Act to re-enact the Legal Practitioners Act 1962 as amended up to date.” This law was reproduced in the publication of Laws of the Federation of Nigeria (LFN) 1990 as Cap 207.
Under Cap 207 of LFN 1990, appeal lies from the Legal Practitioners Disciplinary Committee to the Appeal Committee of the Body of Benchers. Somehow, under that regime, the Attorney General of the Federation, who was involved in the investigation and charging of any person before the disciplinary committee, was also a member of the disciplinary committee and a member of the appeal committee of the Body of Benchers.
The first arm of his powers as regards investigation and charging a legal practitioner for misconduct before the disciplinary committee and also being a member of the committee gave rise to the case of L.P.D.C. v. Fawehinmi,[11] which appeared to have influenced the changes introduced by Decree No. 21 of 1994.
In L.P.D.C. v. Fawehinmi,[12] Chief Gani Fawehinmi, a renowned, fearless and reputable Legal Practitioner had just published a book and in giving publicity to the book made a public notice of same in a weekly newspaper, The West Africa, dated 23rd March 1981, which reads:
A new book on Nigerian Constitution titled Nigerian Constitutional Law Report, 1981: Volume One, edited by Chief Gani Fewehinmi, the famous reputable and controversial Nigerian Lawyer…
It was this terse and apt description of the book and its author by the newspaper that attracted the charge of “advertising, touting and publicity,” which was slammed on him by the office of the Attorney-General of the Federation, acting through the then Solicitor General of the Federation, one Mrs. O.O. Fatunde.
The allegation was that the publication offended Rules 33 and 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No. 69, No. 5 of Vol. 67 in the Official Gazette of 18th January 1980 which, in her words, prohibits “Advertising, Touting and Publicity.”
It was the letter by the said Mrs. O.O. Fatunde and the charges also drafted and signed by her against Chief Fawehinmi for professional misconduct that kick started the controversy, leading to the Supreme Court having to pronounce on the constitutionality of the structure of the LPDC.
Foreseeing the challenge he might be faced with if he appeared before the LPDC, the reputed Senior Advocate of the Masses (SAM), Chief Gani Fawehinmi swiftly filed an ex-parte motion, seeking for an order nisi of prohibition, of the High Court to stop the L.P.D.C. as constituted, from proceeding with the hearing of the matter.
A preliminary issue therefore ensued, to wit: “… the competence of the individuals scheduled to adjudicate on the matter under the Legal Practitioners Act 1975, to hear it, having regard to the principles of natural justice particularly the principles of natural justice which forbid a person to be an accuser as well as the judge at the same time in a case, and the one which demands fairness in the prosecution of a person accused.”
The High Court as well as the Court of Appeal agreed that the principles of natural justice would be breached if the Attorney General, amongst others, who were the complainants, investigators and prosecutors, also sat as the arbiters over the charges against Chief Gani. The court held that:
It goes without saying that in the exercise of its disciplinary authority over erring legal practitioners, the Legal Practitioners Disciplinary Committee must observe the rules of natural justice. In that context, not only must it not be biased against a legal practitioner whose conduct is being questioned, but also it must not place itself in a position in which it may appear that there is a real likelihood of bias. In Deduwa v Okorodudu (1976) 1 N.M.L.R. 236 this Court was interpreting Section 22(11) of the 1963 Constitution the provisions of which were in identical terms as section 33(1) of the 1979 Constitution and stated, inter alia, at page 246, that “A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice.
The Supreme Court was of the opinion that the Constitution of the LPDC was not appropriate, the court stated that:
The problem highlighted in this appeal might not have arisen had the neat arrangement provided for, by the 1962 Legal Practitioners Act, No. 33 of 1962 been left intact, or been re-enacted in the Legal Practitioners Act, 1975. Under the 1962 Act, there were two distinct bodies created: (i) the Legal Practitioners Investigating Panel established under section 6(3) of the Act; charged with the duty of conducting preliminary investigation into any case of professional misconduct alleged against a legal practitioner and consisting of the Attorney-General of the Federation and of the Regions and ten legal practitioners “of not less than 5 years standing; (ii) the Legal Practitioners Disciplinary Tribunal established by section 6(1) of the Act with a Judge of the High Court presiding (s.6(2)) whose duty was the considering and determining of any case of professional misconduct investigated by the Legal Practitioners Investigating Panel and referred to it by the Panel. By this arrangement there was no question of overlapping of duties to bring about the situation created in the present proceedings in which the complaint is that the same people are the accusers and the judges all rolled into one.
The Court held further:
But the Legal Practitioners Investigating Panel was abolished under the 1975 Act leaving the L.P.D.C. with the task of considering and determining the case, with the Chairman of the very L.P.D.C. – the Attorney-General of the Federation – initiating the proceedings, as was done in the instant appeal, by the letter to the Respondent (Exhibit C) and the charges preferred in Exhibit D1. Both the letter (Ex. C) and the charge sheet (Ex. D1) were signed by Mrs. O. O. Fatunde, an officer in the Attorney-General’s Office who, in signing the charge sheet (Ex. D1) described herself as the “Prosecutor.” And so, we arrived at the situation in which the Attorney-General of the Federation (then Chief Richard Akinjide), acting through his staff, received the complaint of the alleged misconduct, drafted the charges as the “Prosecutor” and got himself to sit as the judge; indeed, sat as the judge on Monday 25th January 1982 in the Conference Room of the Nigerian Law School, Victoria Island, Lagos, (see Gani’s affidavit sworn to on 26th January 1962) on which date he adjourned the trial to 22nd February 1982; and would have continued sitting and adjudicating on the matter on the said 22nd February 1982 had his proceedings not been arrested by the order nisi of prohibition of the High Court made on 27th January 1982. He would have been the accuser and the judge at the same time. Such a proceeding would obviously have been null and void on that score as being an infringement of the principle nemo judex in causa sua.
Prior to Act No. 15 of 1975, by virtue of section 7(6) of the Legal Practitioners Act, 1962, appeal lies from the decision of the disciplinary committee directly to the then Federal Supreme Court (now Supreme Court). It would appear that it was in consonance with the obvious preference given to that earlier legislation by the Supreme Court that the amendment in Decree No. 21 of 1994 was introduced.
However, by the decision of the Supreme Court in the case of Akintokun v LPDC,[13] Decree No. 21 of 1994, which made provision for direct appeal from the LPDC to the Supreme Court, had been impliedly repealed. Notwithstanding this position, there is no doubt that there are still issues arising from that decision that warrant academic engagement.[14]
The Legal Practitioners Act (Cap L11, LFN 2004) as contained in the Laws of the Federation (LFN) 2004 contained the provisions relating to appeal from the Legal Practitioners Disciplinary Committee to the Committee of the Body of Benchers, a hangover of Act No. 15 of 1975. Section 12 of the Legal Practitioners Act, Cap L11, LFN 2004 states:
12 (1)There shall be a committee to be known as the Appeal Committee of the Body of Benchers (hereafter in this Act referred to as “the appeal committee”) which shall be charged with the duty of hearing appeals from any direction given by the disciplinary committee.
(2) The appeal committee shall consist of the following seven members of the Body of Benchers, as may be appointed by the Body of Benchers from time to time, that is-
(a) as Chairman, a Bencher, who is a member of the Body of Benchers other than by virtue of section 3(1)(g) of this Act;
(b) two Attorneys-General in the Federation;
(c) two Judges of the High Court of any State; and
(d) two members of the association.
(3) On any appeal against a direction of the disciplinary committee, the appeal committee may allow or dismiss the appeal in whole or in part, and if it is of opinion that any direction given by the disciplinary committee should not have been given or that a different direction should have been given by the disciplinary committee (whether more or less severe), the appeal committee shall revoke the direction of the disciplinary committee or, as the case may be, substitute therefore such direction as it thinks ought to have been given, being a direction which, under section 11 of this Act, could lawfully have been given by the disciplinary committee.
(4)The appeal committee shall cause notice of any direction given by it under this section to be served on the person to whom it relates.
(5) The person to whom such a direction relates may, at any time within twenty-eight days from the date of service on him of the notice of the direction, appeal against the direction to the Supreme Court; and the appeal committee may appear as respondent to the appeal and, for the purpose of enabling directions to be given by the Supreme Court as to costs of the appeal before that court and of proceedings before the disciplinary committee, the appeal committee shall be deemed to be a party to the appeal before the Supreme Court, whether or not it appears on the hearing of that appeal.
(6) A direction of the appeal committee under subsection (3) of this section shall take effect-
(a) where no appeal under this section is brought against the direction within the time limited for the appeal, on the expiration of that time;
(b) where such an appeal is brought and is withdrawn or struck out for want of prosecution, on the withdrawal or striking out of the appeal;
(c)where such an appeal is brought and is not withdrawn or struck out as aforesaid, if and when the appeal is dismissed, and shall not take effect except in accordance with the foregoing provisions of this subsection.
(7) Subject to this Act, the Body of Benchers may make rules prescribing the procedure to be followed in the conduct of appeals before the appeal committee.
By the provision above, appeal goes from the LPDC to the Appeal Committee of the Body of Benchers (ACBB), from whence appeal lies to the Supreme Court. Under the Legal Practitioners (Amendment) Decree No. 21 of 1994, by virtue of section 11(1) therein, the Legal Practitioners Disciplinary Committee (LPDC) is established. Section 11(7) provides that appeal lies from the decision of the LPDC to the Supreme Court. A casual look would leave one in no doubt that the two provisions are contradictory and, perhaps, extant, such as needs clarifications.
In Okike v LPDC (No. 1),[15] the Supreme Court relying on the provisions of the Legal Practitioners (Amendment) Decree No. 21 of 1994 heard a direct appeal from the Legal Practitioners Disciplinary Committee. However, in the later case of Aladejobi v NBA,[16] the Supreme Court relied on the provisions of the Legal Practitioners Act as contained in Cap L11, LFN, 2004 to reach a verdict that it has no power to entertain a direct appeal from the Legal Practitioners Disciplinary Committee.
It must be stated however, that these two cases, really did not dwell on the issue of the existence of contradictory provisions in two supposedly extant laws; Decree No. 21 of 1994 and Cap L11, LFN 2004. Hence, it must be stated that what appeared to be in issue is not whether the Supreme Court can hear appeal directly from the LPDC; but whether the law permits it to do so, and both cases never made any attempt at reconciling the provisions of Decree No. 21 of 1994 and Cap L11, LFN 2004, which was what the court attempted in Akintokun v LPDC.
4. Reconciling the provisions of Decree No. 21 of 1994 and Cap L11, LFN 2004
In Akintokun v LPDC,[17] the Supreme Court sitting as a full court had the opportunity to consider the validity of Decree No. 21 of 1994 as an existing law, vis-a-vis the provisions of Cap. L11, LFN, 2004. The court concluded that the Supreme Court has no jurisdiction to entertain any appeal directly from the LPDC, Cap. L11 LFN, 2004 having impliedly repealed Decree No. 21 of 1994.
In that case, the Supreme Court raised, suo motu, the issue of whether it had the jurisdiction to hear a direct appeal from the LPDC, in view of its earlier decision in Aladejobi v Nigerian Bar Association.[18] After a due consideration of the full court with several learned senior counsel as amici curiae, the court came to the conclusion that:
In law, therefore, there are circumstances in which a repeal of an enactment can be implied or inferred and that is where two acts of the legislature are plainly repugnant to each other that effect cannot be given to both at the same time. Thus, repeal by implication cannot be prohibited where circumstances warrant. See: Ellan Street Estates Limited v Minister of Health (supra) all the courts are reluctant to hold is that Constitutional enactments have been impliedly repealed. See: the dictum of Lord Wilberforce in the case of petition of the Earl of Antrim v Eleven Other Irish Peers [1967] 1 AC 691 at page 724.
In the matter on hand, it is my belief, as I stated earlier, that the 2004 Act and in particular Cap L11 2004 LFN [Legal Practitioners Act] are valid and existing laws of the Federal Republic of Nigeria. Equally, the 1994 Decree No. 21, may not have been textually repealed. It is to be noted, however, that in all the instances cited or referred to in comparison with Aladejobi’s case, there was never cited to the courts a situation where two conflicting laws, co-existed. This makes the clear distinction, that is, the co-existence of Decree No. 21 of 1994 and the provisions of Cap L11 2004 LFN on the discipline of erring legal practitioners which was endorsed, if I may use the word, by the National Assembly. This principle is well settled by this court in the case of Uwaifo v Attorney General, Bendel State & Ors (1982) 7 SC 55 at 90, per Idigbe, JSC (as he then was):
It is indeed, a settled principle of law that where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier (see: Paine v Slater (1883) 11 QBD 120) and the courts lean heavily against implying a repeal except where the two Acts are so plainly inconsistent or repugnant to each other that effect cannot be given to both at the same time, in which case, it will imply a repeal. (See also: Dr. Lushington in The India (1865) 12 LT (new series at 316).
The Court held further thus:
My lords, nobody is denying the existence of Decree No 21 of 1994 as it has not been repealed. But, in view of the provisions contained in the 2004 edition of the Laws of the Federation 2004, can this court close its eyes on the Laws contained in that edition? The Honourable Attorney General himself did not deny the Laws (especially Cap L11, Legal Practitioners Act) as contained in the 2004 edition of the LFN but lamented the omission done in reproducing the Laws relating to the Legal Practitioners Act as amended by Decree No 21 of 1994. Other learned counsel are all at one with the Hon. Attorney General. But, who can correct such omission? Is it the legislature or the court? The more fundamental issue is that now that the 2007 edition of the LFN validated the 2004 edition and that such omissions (by section 2 of the 2007 LFN), shall not affect the validity and applicability of the statute, there is certainly a confusion created by the co-existence of the two enactments on appeal process from the direction of the LPDC. This court, my Lords, is a court of law and a policy court. We cannot afford to allow conflict of laws (as appears in the two enactments under consideration) to mar the progress and dynamism of the legal profession. This issue, as it is, my lords, is beyond mere expression of sentiments. It is a matter of interpretation and application of the law. [Emphasis added.]
The Supreme Court elegantly interpreted the provisions of Cap L11 of LFN 2004 as impliedly repealing the provisions of Decree 21 of 1994 which are contradictory to it. It must be appreciated that the court also cited and compellingly distinguished the case of Ibidapo v Lufthansa Airlines,[19] which had been the basis of holding that a statute can only be expressly repealed. It was the position of the court that:
As for the unanimous arguments of the parties and the amicus curiae that by the provision of Section 2 of the Revised Edition (Laws of the Federation of Nigeria) Act No. 30 of 2007, which approved the Revised Edition of the Laws of the Federation 2004, the inadvertent omissions of the 1994 Amendment to the Legal Practitioners Act in Decree No. 21 of 1994 had been taken care of and therefore remained valid and in full force, the provision of Section 1 of the same Act No. 30 of 2007 has in no uncertain terms stated that the laws of the Federation of Nigeria compiled and published in 2004 under the authority of the Attorney-General of the Federation, are laws or statute approved by the National Assembly. In other words the statutes contained in the current Revised Edition of the Laws of the Federation of Nigeria 2004, including the provision of Section 12 of the Legal Practitioners Act, 2004, are the current statutes applicable in Nigeria. Without a very clear amending statute passed by the National Assembly incorporating all the relevant provisions of the Legal Practitioners (Amendment) Act/Decree No. 21 of 1994 into the present provisions of the 2004 Legal Practitioners Act CAP L11 Laws of the Federation of Nigeria 2004, the stand of this Court in its decision in the case of Aladejobi v Nigerian Bar Association (2013) 15 N.W.L.R. (Pt.1376) 66, remains the law. Departing from this decision to say that the Legal Practitioners Act (Amendment) Decree No. 21 of 1994 is the current law regulating the legal profession in Nigeria on the face of the same statute that came into force in the Revised Edition of the Laws of the Federation of Nigeria, 2004, is to plunge into the work of law making which is reserved for the National Assembly under Section 4 of the Constitution of the Federal Republic of Nigeria 1999.
The position of the Supreme Court is therefore, that although Decree No 21 of 1994 was an existing law when the compilation of the Laws of the Federation was undertaken, Cap L11 of LFN 2004 had indirectly, but effectively repealed Decree No. 21 of 1994 as far as the contradictory provisions are concerned.
7. Determining the existing law between Decree No 21 of 1994 and Cap L11, LFN 2004
Even though the position in Akintokun v LPDC represents the law, at least for now; there are credible legal as well as academic grounds for muted, but reasonable disagreement with the court’s decision. Also, there is sufficient jurisprudential analytical basis to voice an opinion in opposition to the decision of the apex court in that case.
The Supreme Court’s decision to strike down Decree No. 21 of 1994 was solely based on the provisions of Act No. 3 of 2007. It would appear that the Revised Edition (Laws of the Federation of Nigeria) Act, No. 30 of 2007 did not also envisage the implied repeal of Decree 21 of 1994. What Act No. 30 of 2007 sought to achieve was an approval of the compilation and publication of the Laws of the Federation (LFN).
Indeed, Act No. 30 exempts any inadvertent omission, alteration and amendment to an existing law from affecting the validity of such laws. The implication is that, as rightly held by their Lordships in Akintokun’s case, Decree 21 of 1994 is an existing valid law.
Even though the Supreme Court agrees that Decree No. 21 of 1994 was an existing law, it took exemption to its continuous co-existence with Cap L11, LFN 2004, and rightly so in our view. What however, to our mind was rather swift and sweeping is the pronouncement that a later enactment would always supersede any former one. We are of the opinion that if their Lordships have averted their minds to the fact that the legality of law itself depends on process and formalities, it might have safely guided the court in reaching a conclusion that not all later enactments will abrogate earlier ones.
It is therefore, to our minds that the question that arose on the validity of Decree 21 of 1994, is as follows: under Act No. 30 of 2007, would an amendment introduced by a Law Revision Committee not being the legislature be valid, such as would impliedly repeal an Act made by the National Assembly and which was an existing law as at the time of the revision and/or compilation of LFN 2004?
If this question was answered in the case of Akintokun v LPDC, we are of the opinion that the court might have reached a different verdict. Under the interpretation section of Act No. 30 of 2007, “existing statute” means “every enactment, subsidiary instrument, legislation in force before the giving of effect to the provisions of this Act.” That in our opinion accepts and qualifies Decree No. 21 of 1994 as an existing statute. Hence, “any inadvertent omission, alteration and amendment” to Decree No. 21 of 1994 by the Law Revision Committee, would have no effect on Decree 21 of 1994.
What this provision sought to avoid, to our mind, is the situation where inadvertent introductions are made to laws during revision and compilation.
Indeed, the tone of the drafters may convince one to assert that where there is an omission, alteration, amendment inadvertently made in the revision of the law; what would be applicable is the original Act, and not the “omission, alteration or amendment” as inadvertently contained in the LFN. That in our opinion, is suggested in Act No. 30 of 2007, and compels one to concede that rather than impliedly repealing Decree 21 of 1994, Act No. 30 of 2007 did not only save it, but makes it the applicable law in case of any “inadvertent omission, alteration and amendment,” to Cap L11, of LFN 2004, the principal law.
An imaginary example may suffice. If a certain “Time Act No. 1 of 1970” provides for “10” days period for filing a certain document, and by a later “Time (Amendment) Act No. 111 of 1971,” the period for filing the same document was amended to “5” days; the existing law before the coming to force of Act No. 30 of 2007 being the “Time (Amendment) Act No. 111 of 1971,” if “Time Act” is reproduced in the LFN as “Time Act, Cap T200” giving a period of “10” days for the filing of the document, a non-existent provision before the coming into force of Act No. 30 of 2007, what would guide the period will be the provisions of the “Time (Amendment) Act No. 1 of 1971”, that is “5” days and not the “10” days contained as an “inadvertent omission, alteration or amendment, in “Time Act, Cap T200.” What the law saves is the existing law and not the inadvertent omission, alteration or amendment contained in the revision.
Again, the Constitution of the Federal Republic of Nigeria, 1999 has been amended at least three times, if in reproducing a future Laws of the Federation of Nigeria, such amendments are not incorporated and instead the 1999 Constitution is reproduced therein as it were as at 1999, that would not make it valid, the unincorporated amendments will be treated as part of the Constitution.
Without express delegation, or rather abdication of legislative powers to a law revision committee, it cannot on its own amend the substantial provisions of an existing legislation, and it has not been shown that there was such an express donation of power in the present instance.
It is based on this that we are convinced that were the question raised above to have been raised and resolved by the court, a different verdict might have been reached by their Lordships in the case of Akintokun v LPDC, which might have saved all the provisions of Decree No. 21 of 1994, rather than abrogate some of it.
Looking at the decision of the Supreme Court in Akintokun v LPDC, it would appear that the court agreed with the opinion of Badejogbin,[20] albeit, tacitly on other grounds different from hers, that Decree No. 21 of 1994 has been repealed. Badejogbin engagingly attempted a purposeful reconstruction of Cap L11, LFN 2004 and Decree 21 of 1994. She posited that by merely enumerating Decree 21 of 1994 in the marginal note of section 1(1) of the Legal Practitioners (Amendment) (Repeal) Decree No. 43 of 1998, it could be concluded that the legislature purposed to repeal Decree 21 of 1994. Her resolution of the issue was that the legislature intended a return to the pre-decree No. 21 of 1994 position of the law by re-enacting the said position of the law in Cap L11 of LFN 2004.[21]
The challenge with her argument was not only that it overlooked the mischief (or lacuna) that Decree 21 of 1994 was enacted to correct; it took for granted that the additions or amendments or inclusions contained in Cap L11 of LFN, 2004 were carried out by the legislature or was with the approval of the legislature or was based on a law enabling such. As rightly held in Akintokun’s case, Decree 21 of 1994 was an existing law as at the time of the inclusion of Cap L11 in LFN 2004, and not repealed by Decree 43 of 1998.
8. The implications of the decision in Akintokun’s case
Nonetheless, unless there is an amendment to the Law, or the decision is departed from, the Supreme Court cannot exercise appellate jurisdiction from the LPDC by the decision in Akintokun’s case.
Since the courts need the executive to enforce their decisions, the executive may propose a legislative override by sponsoring Bills to amend the law to derogate from the ruling of the court, or adopt an executive avoidance to give effect to the decision. Since the later position would always create a disharmony and may propel a constitutional crisis, the former is always preferred.
Also, the court may, based on the inconvenience the decision may work, or the social disharmony it may create, own up to its error and depart from the decision. Without these, nothing can disturb the finality of the apex court’s decision.
In a Legal Notice obviously made to overrule the settled pronouncement of the Supreme Court to the effect that Cap L11, LFN 2004 has impliedly repealed Decree No. 21 of 1994 as far as the contradictory provisions are concerned, the then Attorney General of the Federation, Mr. Mohammed Adoke, SAN, promulgated Revised Edition [Incorporation of the Provisions of the Legal Practitioners (Amendment) Decree No. 2, 1994].
This was published as supplementary to the Laws of the Federation of Nigeria, 2004, by the Federal Ministry of Justice, Abuja. The undated piece of enactment was made, in the words of the then Attorney General, in his foreword thereto, “in keeping with the constitutional responsibility as the Chief Law Officer of the Federation and the mandate of the Federal Ministry of Justice to ensure that legislation in the public domain are comprehensible, certain and predictable….,” a responsibility, which if one may say, with due respect, was wholly abdicated to the law revision committee during the compilation of LFN 2004 and which led to this unnecessary and rather unfortunate situation. By virtue of section 315(1) of the Constitution:
Subject to the provision of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution….
Section 315(2) states:
The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
These provisions, we believe, were what empowered or rather, emboldened the then Attorney-General to promulgate the undated enactment referred to above in 2015, immediately after the Supreme Court laid to rest the existence of Decree No. 21 of 1994. Even though we do not dispute the powers of the executive to make laws in the form of orders, subsidiary legislation etc, we are of the opinion that such powers do exist subject to the same Constitution that gave them such powers. By virtue of section 315(3) of the Constitution:
Nothing in this Constitution shall be construed as affecting the power of the court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say (a) any other existing law, (b) a Law of the House of Assembly, (c) an Act of the National Assembly; or (d) any provision of this Constitution.
Again, the misconception of the honourable Attorney General might have arose from the misconstruction inherent in the judgement itself, where the Supreme Court appeared to have indirectly approved or endowed a law revision committee with the role of law making and amendment.
In Akintokun’s case, the Supreme Court, even though it agreed that Decree No. 21 was an existing law, it struck it down as being indirectly repealed by Cap L11 of LFN 2004. The implication of this is that the Attorney-General cannot by any means bring it back to life. The Court hinted this much when it held that only the legislature can do the needful.
Once the law lords of the apex court have struck down a law, it would be a desecration of the finality enjoyed by the decisions of their lordships for the Attorney-General to try to prop back to life such a law through his own fiat, even if such finality must be endured because of fallibility.
However, it would appear that the LPDC agrees with the approach utilised by the office of the Attorney General in bringing back to life the provisions of Decree No. 21 as it regards appeal to the Supreme Court.
In Chinwuba v NBA,[22] the LPDC, per the Honourable Chief Joseph Bodunrin Daudu, SAN, former NBA President and the incumbent Chairman of the LPDC, held thus:
The effect of what we have reproduced in that Decree No. 21 of 1994 is an existing law that is yet to be repealed. The National Assembly of Nigeria is yet to amend the Legal Practitioners Act in any form or manner and it is that Body that has the right or power to amend or repeal any existing law. The effect of the judgment of the Supreme Court in Aladejobi and Akintokun is limited to those cases alone and did not take into consideration the revised supplement to the Legal Practitioner Act referred to above. Moreover, the respondent has acknowledged the fact that when he approached the Body of Benchers for the constitution of the Appeal Committee of the Body of Benchers, he was informed that appeal lie to the Supreme Court of Nigeria.
The respected learned jurist continues:
It ought to be noted that it was a powerful committee of the Body of Benchers led by the doyen of the Bar, Alhaji Abdullahi Ibrahim, SAN that provided a solution to the conundrum when they approached the Attorney-General for a solution to the impasse created by the decision of the Supreme Court in Aladejobi and Akintokun (supra). The issue is therefore settled and appeals have never ceased to lie to the Supreme Court of Nigeria from the directions of the Legal Practitioners Disciplinary Committee. In addition, the composition of the LPDC is as stipulated in the Revised Supplement to the Laws of the Federation of Nigeria as it relates to the Legal Practitioners Act. If it were to be otherwise, why would the applicant be approaching us to restore his name back to the Roll of Legal Practitioners when the effect of Akintokun is that the LPDC ought to be differently constituted before exercising that jurisdiction? The supplement to the revised edition of the Laws of the Federation 2004 has settled the matter and we so hold.
Even though one may agree that the court did not expressly state that Decree No. 21 of 1994 was repealed, the implication of the decision in Akintokun’s case is that it is the later provisions in Cap L11 of LFN 2004 that takes precedence over the provisions of Decree No. 21 of 1994 where they are contradictory.
The question that then arises is whether the provisions of Decree No. 21 of 1994 which are contradictory to the provisions in Cap L11 of LFN 2004 on the same issues can be reintroduced into our body of laws without a formal amendment to Cap L11 of LFN 2004. This question is very crucial in determining the validity of the Supplementary law published in the Ministry of Justice Gazette or put the other way round, whether it is possible by the Notice of the Honourable Attorney-General to remove and substitute sections of the law that have been validated as an existing law by the Supreme Court.
Once the Law Lords of the apex court have enforced the provisions of Cap L11, LFN 2004 against the provisions of Decree No. 21 of 1994, those provisions in decree No. 21 of 1994 can only be brought back to life by the Supreme Court overruling itself and re-validating the relevant provisions. The reason is that not even the legislature can bring it back to life in the form it was enacted without having to re-enact those provisions in a new Act.
Even though the learned jurists in Chinwuba’s case opined that what the Honourable Attorney General did was not an amendment, it would, in our opinion amount to an amendment. One must concede that textual modification such as envisaged under section 315 of the Constitution is limited to bringing an Act into conformity with the Constitution and not another Act; besides, such textual modification is not a wholesale substitution of sections, which it has not been shown, offends the constitution.
A law is said to be amended when there are alterations or additions to the law by the appropriate authority. What the Honourable Attorney General did, with due respect, could have been harmonisation if the later intrusions in Cap L11 were not erroneously approved by the Supreme Court. Once these latter intrusions have been included, the Honourable Attorney General cannot be said to be harmonising it with a former law, because the later has been held to have indirectly but effectively amended the former. That is the ratio of Akintokun’s case. The Attorney General is not elected by anybody to make laws; rather, he holds executive powers on appointment of the President of the Federal Republic of Nigeria.
It is based on this that we are of the view that the supplementary published in the Federal Ministry of Justice gazette is invalid -an unauthorised amendment to Cap L11, LFN 2004- and cannot be the basis for stating or holding that Decree No 21 of 1994 has been harmonised with Cap L11 of 2004. What can be harmonised is the saved part of the Decree and not the parts declared inconsistent with the later Act.
9. Remedies available where a right of appeal is circumscribed by reason of non-creation or non-constitution of the appeal panel or court
The right to appeal is not an absolute constitutional right. Various arguments have been advanced that the right of appeal must always be available in all cases to keep up with judicial due process, and in some instances, constitutional fair hearing. These arguments appear to have developed from a judicial over stretch of the right to appeal. Strictly speaking, the right to appeal is only exercisable as statutorily granted. Where no right of appeal is created by statute, same ought not to be exercised. However, where one is created, then the exercise of it can always be achieved within the law.
Howbeit, judicial decisions could be grouped into two; those that are strictly subject to appeal, and those that are subject to review. By law, the decisions of all inferior courts and tribunals are subject to review.
The question is whether the LPDC is a tribunal whose decisions are subject to judicial review? In Okike v LPDC,[23] Belgore JSC in his concurring opinion states as follows:
The Legal Practitioners Disciplinary Committee, it must be pointed out, is not a tribunal but a fact finding and housecleaning body to maintain discipline and decorum of the legal profession.
Although, the opinion of his Lordship stated above can be effectively confined to the rank of statements by the way, one may also add that the status of the LPDC has been considered and effectively determined by the Supreme Court in LPDC v Gani Fawehinmi, where Aniagolu JSC stated as follows:
I am therefore more inclined to think that in the premises, the Legal Practitioners Disciplinary Committee while discharging its duties under sections 9 and 10 of the Legal Practitioners Act, 1975, must be deemed to be a quasi-judicial Tribunal which in the discharge of those duties, must act judicially.
In the instant appeal, the civil rights and obligations of a legal practitioner in relation to his conduct in the practice of that profession are called in for questioning and determination by the Legal Practitioners Disciplinary Committee. Section 33(1) of the Constitution, in my view, applies to the proceedings in that determination, and the Legal Practitioners Disciplinary Committee comes in as a “tribunal” envisaged by that sub-section of S.33 in those proceedings.
The implication of the decision above is that the LPDC could safely be treated as a quasi-judicial tribunal. While one is very certain that the LPDC is a tribunal, what should be determined is what form of tribunal the LPDC is. As a quasi-judicial tribunal, the decisions of the LPDC cannot be final, even where there is no right of appeal or the right of appeal is circumscribed. This is because, administratively, its decisions are subject to review, especially where the decision relates to the fundamental rights of an individual or the jurisdiction of the tribunal to hear a case.
Since there is no Appeal Committee of the Body of Benchers in place, and one doubts if it is really desirable to have one, until this confusion is cleared, parties aggrieved by the decision of the LPDC might utilise the mechanism of judicial review to challenge the decision where applicable since the LPDC is a tribunal, whose decision is subject to the review of the High Court, in this case, the Federal High Court.
10. The validity of LPDC as presently constituted:
Although, this issue has not come before the court in the strict sense, this becomes relevant in the face of the decision in Akintokun’s case. The composition under Cap L11, LFN 2004 and Decree No. 21 of 1994 are different. Under Cap L11, LFN 2004, the LPDC consists of the Attorney General of the Federation as the Chairman, the Attorney General of the States in the Federation, and twelve legal practitioners of not less than ten years standing appointed by the Benchers on the nomination of the Association.
Under Decree No. 21 of 1994, it consists of a Chairman who shall not be either the Chief Justice of Nigeria or a Justice of the Supreme Court; two Justices of the Court of Appeal, one of whom shall be the President of the Court of Appeal; two Chief Judges; two Attorneys-General, who shall be either the Attorney-General of the Federation and the Attorney-General of a State or two State Attorneys-General; four members of the association who are not connected with either the investigation of a complaint or the decision by the association to present a complaint against a legal practitioner for determination by the disciplinary committee.[24]
The LPDC as presently constituted is based on Decree No. 21 of 1994, that explains the reason why everything possible has been done, and rightly so, to clothe the composition with legality. This is because, once the constitution of the LPDC is declared improper, the decisions emanating there from would obviously be invalid. This unfortunate situation should not have befallen the legal profession, but then, God forbid that those whose business is the law itself should be found wanting in it.
The LPDC as presently constituted is invalid, following the decision in Akintokun’s case, which one should be persuaded still remains the law, although erroneously decided.
This would invariably mean that the decisions of the LPDC after the coming into force of Act No. 30 of 2007 are all invalidly delivered by reason of improper constitution of the committee and thus, application may be made to the Federal High Court to quash such decisions.
11. Conclusion
Laws do change and the courts are also allowed to shift opinion when it discovers that earlier positions are reached in error or not in accordance with the law. The implication is that the court can in a later case depart from its earlier decision, or the Legislature in order to make its true intention manifest, can take care of it by changing the position of the law as declared or altered by the court in a new enactment. Either of these two is the way out in dealing with the issue at hand. Any utilisation of the doctrine of wuruwuru to the answer, however correct the answer is would always put a question mark on the answer, which question mark could be differently interpreted, leading to protracted debates and unnecessary distractive insinuations.
[1] This paper is culled from Oloworarans’ Civil Procedure (Volumes I and II) (Port Harcourt: Institute of Human Capacity Development and Continuing Education, 2015), pp. 1303-1313.
* LL.M., BL, Principal partner in the Port Harcourt based law research firm, Benuch Legal Consult, author, The Law and Practice of Public Procurement in Nigeria, Co-Author, Oloworarans’ Civil Procedure (Volumes I and II); Practice Compass (Volumes I-III), Criminal Litigation and Administration of Criminal Justice Law in Nigeria. Founding editor and Member of the Editorial Board of Law and Policy Review; and Natural Resources and Environmental Law Journal. The co-author has published several research articles in learned journals and several other law texts. bensondele@yahoo.com
** LL.M., BL, Director, Institute of Human Capacity Development and Continuing Education, Port Harcourt, co-author, Oloworarans’ Civil Procedure (Volumes I and II); Practice Compass (Volumes I-III), Criminal Litigation and Administration of Criminal Justice Law in Nigeria. Founding Editor Member of the Editorial Board of Law and Policy Review and Natural Resources and Environmental Law Journal. The co-author has published several research articles in learned journals and other law texts. uchenwanji@yahoo.com
[2] See, Legal Practitioners Act, Cap. 101 of the Laws of the Federation of Nigeria and Lagos, 1958, Vol. IV, sections 20, 21, 32-37 thereof.
[3] The laws and the amendments thereto included the following: Legal Practitioners Act, Cap. 101 of the Laws of the Federation of Nigeria and Lagos, 1958, Vol. IV, Legal Practitioners Act, 1962 No.33, Legal Practitioners Act No. 15 of 1975 reprinted as Legal Practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1990 and incorporating Decrees No. 29 of 1976, No. 40 of 1977, No. 67 of 1977, No. 9 of 1979, No. 75 of 1979, and No. 46 of 1988. Legal Practitioners (Amendment) Decrees, No. 21, No. 28 and No. 120 all of 1992, Legal Practitioners (Amendment) Decrees Nos. 21, 38 and 120 of 1993, Legal Practitioners (Amendment) Decree No. 21 of 1994, Legal Practitioners (Amendment) Decree No. 43 of 1998, Legal Practitioners Act, Cap L11 Laws of the Federation, 2004. See Akinola, O. B., Principles of Law in Practice (Professional Ethics and Skills). St. Paul’s Publishing House, Ibadan (2016), p.153
[4] Section 232(1).
[5] Section 232(2).
[6] See the proviso to section 232(2).
[7] Section 233 (2)-(6).
[8] See sections 10(e) and 12(7) of the Legal Practitioners (Amendment) Decree No. 21 of 1994 and Legal Practitioners Act Cap L11 Laws of the Federation of Nigeria, 2004 respectively.
[9] (2005) 3-4 SC 49.
[10] LFN, 1975, pp. A51-A69.
[11] (1985) NWLR (Pt.7) 300.
[12] (1985) NWLR (Pt. 7) 300.
[13] (2014) LPELR 22941 (SC).
[14] See, Dele Kelvin Oye, “Professional Discipline: Time to Amend the Act,” in Thisday newspaper (Nigeria), of 16th December, 2014, available online at: http://www.thisdaylive com/articles/professional-discipline-time-to-amend-the-act/196816/, visited on 8th May 2015.
[15] (2005) 3-4 SC 49.
[16] [2013] 15 NWLR (Pt. 1376) 66.
[17] Supra.
[18] (2013) 15 NWLR (Pt. 1376) 66.
[19] (1997) 4 NWLR (Pt.498) 124.
[20] Badejogbin R.E., “The Unresolved Conflict of the Regulatory Law of the Legal Profession,” Nigerian Bar Journal, Vol. 5, No. 1, February 2007, pp. 61-78. This article was referred to in the judgment.
[21] See Akinola O. B., Section 12 of the Legal Practitioners Act Examined. Nigerian Law and Practice Journal (2013) (NL&PJ) Vol. 12, Page 100
[22] [2017] 5 NWLR (Pt. 1557) 148 at 164-165, at paragraphs B-A, per Daudu, SAN, Chairman, LPDC.
[23] [2005] 10 MJSC 1 at 49.
[24] Section 11 of Decree 21 of 1994 and section 11 (2) of the Harmonised Legal Practitioners Act LFN 2004.