LEGAL PRACTITIONERS DISCIPLINARY COMM. V. FAWEHINMI
| Pages | 998-1070 |
LEGAL PRACTITIONERS DISCIPLINARY COMM. V. FAWEHINMI
998
LEGAL PRACTITIONERS DISCIPLINARY COMM.
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V. FAWEHINMI
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15
LEGAL PRACTITIONERS
DISCIPLINARY COMMITTEE
V
CHIEF GANI FAWEHINMI
SUPREME COURT OF NIGERIA
IRIKEFE,
J.S.C.
OBASEKI,
J.S.C.
APPELLANT
RESPONDENT
SUIT NO. SC 177/1984
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ESO,
ANIAGOLU,
UWAIS,
KARIBI-WHYTE,
OPUTA,
5th July, 1985
J.S.C.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
Constitutional Law - Right to fair hearing - Proceedings under Legal Practitioners
Disciplinary Committee - Rules of natural justice - Applicability under S.33(1)
of 1979 Constitution.
Professional Ethics - Legal Practitioners - Disciplinary Proceedings - Functions of
Legal Practitioners Disciplinary Committee under Legal Practitioners Act 1975
- Whether administrative or quasi- judicial.
Words and Phrases - "Court or other Tribunal" in S.33(1) of 1979 Constitution
- Includes Legal Practitioners Disciplinary Committee.
Administrative Law - Prerogative writs - Control of quasi-judicial tribunals - Writ
of prohibition - When issuing - Judicial and non-judicial powers - How
determined - Courts and tribunals - When bound to act judicially - Rules of
natural justice - Fair hearing - Rule against bias or likelihood of bias - Nemo
judex vile - Audi alteram partem rule - When prohibition may lie to prevent
infringement of rules of natural law.
ISSUES:
1.
Whether the Legal Practitioners Act, No. 15 of 1975 is a Law of the National
Assembly in respect of which judicial powers may be conferred by virtue of
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S.6(5)(a) of the Constitution dealing with judicial powers of the Federation.
2.
What is "a court" or "tribunal" within the context of section 33(1) of the
Constitution and what tests may be applied generally in determining whether a
statutory body has judicial powers and is bound to act judicially in its
observance of the rules of natural justice?
3.
When are the decisions of courts said to be binding and conclusive.
4.
What are the features and hall marks of the judicial functions which must make
it subject to the observance of the rules of natural justice?
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999
NIGERIAN SUPREME COURT CASES
[1985] 2 N.S.C.C.
5.
How may statutory bodies which are merely administrative or ministerial be
distinguished from statutory bodies having judicial function?
6.
Whether the Legal Practitioners Disciplinary Committee is a tribunal of a type
envisaged by section 33(1) of the Constitution.
7.
What type of tribunal is envisaged by section 33(2) of the 1979 Constitution?
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8.
Whether the duties of the Legal Practitioners Disciplinary Committee under
S.10(1) of the Legal Practitioners Act implies the exercise of judicial power.
9.
When does the Writ of Prohibition lie.
10.
What is the effect where the prosecutor in a case, is both the complainant and
the Judge rolled into one, and whether it makes any difference that in one of
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such roles, he had acted nominally in an official capacity?
11.What is the effect where the antecedents of would-be adjudicators show them
to be persons who are likely to be psychologically affected in coming to a
decision or to act from personal knowledge and bias?
FACTS:
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The Attorney-General's officers in the Ministry of Justice served on the Re-
spondent a letter written on his direction asking for an explanation of his conduct
of causing an advertisement to be inserted in the Weekly Magazine titled "West Af-
rica" which advertisement was considered offensive to the Rules of Professional
Conduct which prohibits advertising, touting and publicity. Before the expiration
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of the time given him (14 days) to give an explanation, a charge was preferred
against him by a direction of the Attorney-General to be tried by the Legal Practi-
tioners' Disciplinary Committee. When he appeared before it, the Attorney-
General sat as Chairman. The Respondent applied to Court for an order prohibiting
the Legal Practitioners Disciplinary Committee as it was constituted from hearing
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the charges of professional misconduct preferred against him. The respondent's
contention was not to challenge the Legal Practitioners Act, but the membership
and a
fortiori
the chairmanship of the Attorney-General in the Committee and the
membership of some 3 members of the National Executive of the Bar who had met
and expressed strong opinions against the respondent on an earlier occasion. In
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seeking the order, the respondent based his application on section 42(3) of the
1979 Constitution and sought for the enforcement of his fundamental right to fair
hearing under section 33 of the Constitution. His ground was likelihood of bias
since the members of the Committee had actively participated in investigating the
matter. The trial Judge found for the Respondent and the Court of Appeal dis-
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missed the Appeal of the Committee.
On appeal to the Supreme Court.
The appellant committee argued as it did in the Court of Appeal, that the
L.P.D.C. is an administering body, of a kind contemplated by section 33(2) of the
Constitution and was not bound by the rules of natural justice and the operation of
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section 33(1) of the Constitution. Also, that since appeals lay to the appellate com-
mittee of the Body of Benchers from its "directions", such directions were not de-
cisions
and that its function was not judicial, not having a final binding effect.
HELD:
1.
That the judicial powers of the Federation are vested in the Supreme Court,
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Court of Appeal, the Federal High Court and the High Courts of the States.
These are Courts established for the Federation and enumerated in section
6(5)(a), (b) and (c) of the 1979 Constitution. The judicial powers are also vested
in such other courts as may be authorised by a law to exercise jurisdiction on
matters in respect of which the National Assembly may make Laws. The Legal
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Practitioners Decree No. 15 of 1975 is a law of the National Assembly and in
respect of which judicial powers can be conferred by virtue of section 6(5)(a)
of the Constitution.
LEGAL PRACTITIONERS DISCIPLINARY COMM. V, FAWEHINMI 1000
2.
That in compliance with the provisions of section 33(1) of the 1979 Constitution,
a court or tribunal is any statutory body which has power to decide controversies
and give binding decisions. Accordingly, the tests necessary for the
determination whether a statutory body has judicial powers are (1) whether it
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has before it a
lis inter partes,
(2) whether the decision of the statutory body is
binding and (3) whether the decision is condusive and final. A combination of
these characteristics will result in the vesting of a statutory body with the powers
of resolving any disputed questions of law or fact by reference to the established
principles of law. Thus a court, tribunal or statutory body exercising judicial
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powers must act in a judicial capacity, when after investigations and
deliberation, it comes to a conclusive determination of the issue by the
application of established legal rules or objective legal standards to the facts
found by it. In the exercise of its disciplinary authority over erring legal
practitioners, the Legal Practitioners Disciplinary Committee must observe the
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rules of natural justice, and in that context, it must not only avoid bias but also
the likelihood of bias.
3.
That the decisions of courts are binding and conclusive in as much as they have
the force of law without the need for confirmation or adoption by any other
authority.
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4. That the accepted hallmarks of the judicial function are interpreting, declaring
and application of the law. Judicial acts may however be identified by their
procedural or substantive quality alone or by any combination of all of the
above. Therefore, where these characteristics are a feature of the exercise of
statutory power, there is no doubt that such exercise of power must be subject
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to the observance of the rules of natural justice.
5.
That when a statutory body is vested with powers other than judicial, which
invariably is administrative or ministerial, it is not a court or tribunal within section
33(1) of the Constitution. Generally, there is no
lis inter pan'es
in the exercise
of purely administrative powers which are usually in the nature of investigatory,
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advisory, deliberative or conciliatory. The powers exercised do not have legal
effect until confirmed by another body. They are known in some cases, to have
the powers of making a preliminary decision, but are not recognised to effect
the right of persons. The characteristics of bindingness, finality and
lis inter
partes
of the exercise of a judicial power are clearly absent in the exercise of
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an administrative power. Nevertheless, the rules of natural justice apply to both
judicial and administrative determinations; they are riot limited to judicial
decisions.
6.
That in the instant appeal, the civil rights and obligations of a legal practitioner
in relation to his conduct in that profession are called in for questioning and
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determination by the Legal Practitioner Disciplinary Committee. Section 33(1)
of the Constitution applies to the proceedings in that determination, and the
Legal Practitioners Disciplinary Committee comes in as a "tribunal" envisaged
by subsection (1) of section 33 of the Constitution in those proceedings.
7.
That section 33(2) of the Constitution of the Federal Republic of Nigeria 1979
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refers to a situation where the statutory body determines nothing final and
conclusive and where there is provision to make representation to the
administering authority before the effective determination is made. It does not
apply to exercise of judicial powers which are final and conclusive. Section 33
is an entrenched provision of the Constitution which cannot be displaced by
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legislation however unambiguously worded.
8.
That the duties of the appellant committee as prescribed in section 10(1) of the
Legal Practitioners Decree No. 15 of 1975, are to consider and determine the
allegations of professional misconduct made against the respondent and if the
allegations of misconduct amounting to infamous conduct is established, to
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