LPDC V FAWEHINMI

LPDC V FAWEHINMI


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 5TH DAY OF JULY, 1985


APPEAL NO: SC.177/1984

CITATION: SC (1984) 7 LLER 1

Alternative Citation:
(1985) NWLR (Pt.7) 300

Before Their Lordships

AYO GABRIEL IRIKEFE, J.S.C.

ANDREWS OTUTU OBASEKI, J.S.C.

KAYODE ESO, J.S.C.

ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.

MUHAMMADU LAWAL UWAIS, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

CHUKWUDIFU AKUNNE OPUTA, J.S.C.


BETWEEN

LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE

(APPELLANTS)

AND

CHIEF GANI FAWEHINMI

RESPONDENTS


PRONOUNCEMENTS

A. ADMINISTRATIVE LAW
1. Administrative Inquiry or Decision–When can an administrative decision be said to be a judicial function?

One test for identifying judicial function has been said to be whether the performance of the function terminates in order that has conclusive effect. 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. Thus in IBRALEBBE v. R. (1964) A.C. 900, it is said that even though the Judicial Committee of the Privy Council has a special advisory jurisdiction under Section 4 of the Judicial Committee Act 1833, its decisions in other cases are in effect judgments, but take the form of advisory reports to Her Majesty, which are always promulgated by Order in Council.


…Another test in identifying whether statutory functions are of a judicial character is said to lie in certain formal and procedural attributes – those trappings and procedure adopted by the courts. Under Section 11(7) of the Legal Practitioners Act, 1975 the Body of Benchers may make rules prescribing the procedure to be followed in the conduct of appeals before the Appeal Committee of the Body of Benchers. I am not aware that any such rules have been made by the Body of Benchers and therefore the test of identification of whether or not the L.P.D.C. is judicial, from the procedure, cannot be applied to its deliberations or the appeal therefrom to the Appeal Committee of the Body of Benchers. But the same cannot be said of the appeal proceedings before the Supreme Court where the Supreme Court Rules obviously apply. PER ANIAGOLU, J.S.C. READ IN CONTEXT

B. FAIR HEARING
2. On the principle that every tribunal and court must observe the rules of natural justice

It is the accepted law that basic procedural and other requirements of the rules of natural justice have to be observed by every tribunal or authority which is under a duty to act judicially. PER ANIAGOLU, J.S.C. READ IN CONTEXT

Fair hearing–what amounts to? How determined?

This Court in Alhaji Isiyaku Mohammed v. Kano N.A. (1968) 1 All N.L.R. 242 at p. 426 has held that “a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing…. The true test of a fair hearing … is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case”. This reasonable person, will, naturally, be looking for the following in order to determine whether the “trial was fair and whether justice has been done:- 1. How was the tribunal or the forum competens composed? Was it composed of “judges” or “persons” whose impartiality and fairness were transparent; persons who, taking into account our common human weakness, can exercise a detached attitude towards the facts presented to them; persons whom the Respondent will have no cause to suspect or distrust; persons in whom the Respondent reposed confidence? Justice, in the final analysis, must be rooted in confidence and that confidence may be destroyed by the conduct and/or utterances of the judex – (person adjudicating) – giving the impression that he was biased: Metropolitan Properties Co. (FGC) Ltd v. Lannon (1968) 3 All. E. R. 304 at p. 310. 2. Was the person whose conduct was being inquired into, given the opportunity to listen to and reply to all the allegations made against him; and was nothing adverse said about him in his absence? These are the twin pillars of fair hearing or fair trial. They are also the twin pillars of natural justice; they are the rules against bias and the right to be heard. In the latin days of jurisprudence, the Ancient Romans put these two rules into two latin maxims: “1. [Nemo judex in causa sua]; and 2. Audi alteram partem” . In the English days of jurisprudence, they have been reduced to two very familiar words – Impartiality and Fairness. They are distinct but closely related concepts. Impartiality relates to the forum itself, while fairness relates to the right of the person accused to be heard:- Kanda v Government of Malaya (1962) A.C.322. PER OPUTA, J.S.C. READ IN CONTEXT

C. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
3. Right of Appeal–Right appeal of a legal practitioner from a direction of the LPDC, how exercised?

It is true that such a legal practitioner could appeal, within 28 days from the date of service on him of notice of the direction, to the Appeal Committee of the Body of Benchers (Section 10(7) ibid) established under Section 11 and that a further appeal against the “direction” of the Appeal Committee of the Body of Benchers lies to the Supreme Court again within 28 days of the service of notice on the legal practitioner of the direction of the Body of Benchers Appeal Committee under S.11(5); that the direction of the Supreme Court is final S.12 ibid), yet, unless the legal practitioner exercises those rights of appeal, the decision of the Disciplinary Committee pursuant to section 10 would be final and all the directions given by it would be of full force and effect. PER ANIAGOLU, J.S.C. READ IN CONTEXT

D. WORDS AND PHRASES
4. Meaning of “quasi-judicial”

It has been said by legal writers that the term “quasi-judicial” may have one of three meanings: firstly, it may describe a function that is partly judicial and partly administrative such as the making of a compulsory purchase order preceded by the holding of a judicial type local inquiry and the consideration of objections; secondly, it may alternatively describe the “judicial” element in a composite function – thus the holding of inquiry and considering objections in respect of a compulsory purchase order become “quasi-judicial” acts; and thirdly; it may describe the nature of the discretionary act itself where the discretion is unfettered. See: de Smith’s Judicial Review of Administrative Action, 4th Edition p. 77). PER ANIAGOLU, J.S.C. READ IN CONTEXT

5. Meaning of “Real Likelihood”

The term “Real Likelihood” may not be capable of exact definition, since circumstances giving rise to it may vary from case to case, but it must mean, at least. “a substantial possibility of bias”. This may arise because of personal attitudes and relationships, such as: personal hostility; personal friendship; family relationship; professional and vocational relationship; employer and employee relationship; partisanship in relation to the issue at stake, and a whole host of other circumstances from which the inference of a real likelihood of bias may be drawn. PER ANIAGOLU, J.S.C. READ IN CONTEXT


LEAD JUDGEMENT DELIVERED BY ANIAGOLU, J.S.C.


The proceedings in this appeal relate to a Legal Practitioner who is a Solicitor and Advocate of the Supreme Court of Nigeria, one Gani Fawehinmi Esq., of 28, Sabiu-Ajose Crescent, Surulere, Lagos, and concerns a professional misconduct allegedly committed by him in that he engaged himself in “advertising, touting and publicity” by reason of a publication in a weekly newspaper, the “WEST AFRICA’, dated 23rd March 1981, which read as follows:

A NEW BOOK ON NIGERIAN CONSTITUTION

TITLED

NIGERIAN CONSTITUTIONAL LAW REPORT

1981 Volume One

Edited by

CHIEF GANI FAWEHINMI

the famous reputable and controversial Nigerian Lawyer…”

The issue which falls now, to be decided in this appeal is not whether or not Chief Gani Fawehinmi (hereinafter simply referred to as “Gani”) committed the alleged misconduct, but the preliminary issue of 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.

As it turned out, after the Legal Practitioners Disciplinary Committee (hereinafter referred to as the “L.P.D.C”) had put up and served the two charges under section 10(1) (a) of the Legal Practioners Act, 1975, Gani preempted the proceedings and, obviously quia timet, filed an ex-parte motion, seeking for an order nisi of prohibition, for the High Court to stop the L.P.D.C., as constituted, from proceeding with the hearing of the matter. This is the matter with which this Court is concerned, in this appeal for the meantime.

But before I embark upon a determination of this legal issue and other legal issues ancillary thereto, it will be worthwhile to set out, in some form of chronology, the facts which have led to these proceedings.

It all started with that publication (hereinbefore set out) in that old established magazine “WEST AFRICA” at page 621 of its 23rd March issue. On 1st December 1983, one Mrs. 0.0 Fatunde acting for the Solicitor-General of the Federation and Permanent Secretary, Ministry of Justice, wrote a letter Exhibit C to Gani in this vein:

“Federal Ministry of Justice,

Industrial and Mercantile Law Division,

Ikoyi, Lagos.

Ref. No. DI7/235/70

1st December, 1981

Chief G. O. Fawehinmi,

28, Sabiu-Ajose Crescent,

Surulere.

Dear Sir,

The attention of the Hon. Attorney-General of the Federation and Minister of Justice has been drawn to the advertisement contained on page 621 of March 23rd issue of ‘WEST AFRICA’ captioned as follows:-

‘A NEW BOOK ON NIGERIAN CONSTITUTION

TITLED

NIGERIAN CONSTITUTIONAL LAW REPORTS

1981 Volume One Edited by

CHIEF GANI FAWEHINMI

the famous, reputable and controversial Nigerian Lawyer…

2. It is the view of this Ministry that the conduct offends against 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 prohibits ADVERTISING, TOUTING AND PUBLICITY.

3.I am therefore directed by the Honourable Attorney-General of the Federation to request you to show cause by way of written explanation within 14 days thereof why the matter should not be referred to the Legal Practitioners Disciplinary Committee for appropriate action.

Yours faithfully,

O. O. Fatunde (Mrs.)

for: Solicitor-General of the Federa

tion and Permanent Secretary”

The formal charges dated 3rd December 1981 against Gani were contained in EXHIBIT D1, signed by the same Mrs. O. O. Fatunde, described therein as the “Prosecutor”. She also signed the hearing notice, EXHIBIT D, which gave the hearing date as 25th January 1982. Exhibit D1 reads:

“THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE

HOLDEN AT LAGOS, NIGERIA

IN THE MATTER OF PROFESSIONAL CONDUCT IN THE

LEGAL PROFESSION

Charge No. LPDC. 2/81

Re: CHIEF GANI FAWEHINMI

COUNT ONE:

That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the Roll of Legal Practitioners in Nigeria, on or about the 23rd of March, 1981 at Lagos, did commercially advertise the importance of your position as a lawyer in Nigeria at page 621 of the periodical called “West Africa” of 23rd March 1981 issue by describing yourself as ‘the famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 33 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a legal practitioner within the intentment of section 9(1) of the Legal Practitioners Act 1975 (No.15) and therefore liable to be disciplined in accordance with the provisions of section 10(1)(a) of the Legal Practitioners Act 1975.

COUNT TWO

That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the Roll of Legal Practitioners in Nigeria, on or about 3rd of March 1981, at Lagos, caused or permitted to be published the importance of your position as a lawyer in Nigeria at page 621 of the periodical called ‘West Africa’ of 23rd March 1981 issue by describing yourself as the ‘famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a legal practitioner within the intentment of Section 9(1) of the Legal Practitioners Act 1975 (No.15) and therefore liable to be disciplined in accordance with the provisions of section 10(1)(a) of the Lega1 Practitioners Act 1975.

O. O. Fatunde (Mrs.)

(Prosecutor)

Dated this 3rd day of December, 1981.

“Address for Service:

Chief Gani O. Fawehinmi,

28, Sabiu-Ajose Crescent,

Surulere,

Lagos.

(Behind Adeniran Ogunsanya Shopping Centre).

Exhibit D3 carried, in summary, the Legal Practitioner involved, the complainant shown there to be the “Federal Ministry of Justice” and the nature of the complaint. That document is hereby set out:

FILE NO. DIL/283

LEGAL PRACTITIONER Chief G.O. Fawehinmi 28, Sabiu Ajose Crescent, Surulere, Lagos.

COMPLAINANT Federal Ministry of Justice, Ikoyi,

NATURE OF COMPLAINT

The said Legal Practitioner who is resident in Lagos caused an advertisement to be published at page 621 of March 1981 issue of the ‘West Africa’ Magazine, Captioned’ A New Book on Nigerian Constitution’. The Book is said to be edited by the Legal Practitioner who is described therein as ‘the famous, reputable and controversial Nigerian Lawyer’ – The conduct of the Legal Practitioner offends against the Provisions of Rule 33 of the Rules of Professional conduct in the Legal Profession by tending to show the Legal Practitioner’s position in the Nigerian Society, It also offends against the provisions of Rule 34 in that the said Legal Practitioner has lent his name together with a description ‘Lawyer’ for use in a commercial Advertisement other-wise than as provided by the said Rules”

Be it noted that the letter, Exhibit C, in its paragraph 3 requested Gani to submit a –

“written explanation within 14 days why the matter should not be referred to the Legal Practitioners Disciplinary Committee for appropriate action”

That would have left the matter open till at least 14th December 1981. Despite that, however, on 3rd December, 1981 the charges (Exhibit D1) were framed and served on Gani.

As stated by Gani before us in this Court, it was this haste in the framing of the charges which excited his suspicion and put him in fear, leaving him in doubt as to whether his trial would be fair.

This excitement, fear and doubt pushed him into a flurry of activities, starting with the ex parte motion, which was heard by C.A. Johnson, J. (as he then was) on 27th January 1982, who granted the Ordernisi, holding that:

The Court is satisfied that sufficient crime (sic) has been shown to entitle the applicant to the order sought. Leave is accordingly granted to apply. It is further directed – The Legal Practitioners Disciplinary Committee should stay further proceedings in respect of the charges against the applicant until his application is finally determined by the Court:

Application adjourned till 8/2/82″

An enrolled order of the Court of the same date prohibited the L.P.D.C. from proceeding with the matter until the final determination of the application.

The Order reads:

“UPON THIS MOTION EX-PARTE coming before this court and upon reading the affidavit in “support of the motion sworn to and filed by Chief Gani Fawehinmi of 28, Sabiu Ajose Crescent, Surulere, Lagos State on the 25th day of January, 1982 and after hearing Olu Onagoruwa Esquire, who with others appeared as Counsel for the applicant in support of the motion:

It is hereby ordered that leave be, and is accordingly granted to the applicant to apply for an order prohibiting the respondent the Legal Practitioners Disciplinary Committee from considering and determining the complaint and charges made against the applicant.

It is further directed that the Legal Practitioners Disciplinary Committee should stay further proceedings in respect of the charges against the applicant until this application is finally determined by the court.

It is also ordered that the case be made returnable for Monday the 8th day of February, 1982

Dated at Lagos this 27th day of January, 1982”

The next day, 28th January 1982, Gani, by notice of motion of that date, put the L.P.D.C..on notice. By an affidavit sworn to on 4th February 1982 by one ADETUNJI FADA YIRO, a Legal Practitioner of 110, Ibara Road, Abeokuta, who was then the President of the Nigerian Bar Association, it was disclosed that it was the National Executive Committee of the Nigerian Bar Association at its meeting in Calabar on 24th April 1981 which decided that the conduct of Gani should be referred to the Disciplinary Committee. The matter was subsequently referred to the said Committee by the Secretariat of the National Executive Committee which reported back to the National Executive Committee at its meeting in Maiduguri on 3rd July 1981. The obvious implication of this was that the Appellant was maintaining that the Attorney-General (then Chief Richard Akinjide) was not responsible for sending the matter to the Disciplinary Committee and, therefore, could not be said, as maintained by Gani, that he was in a desperate hurry to do Gani in, thus obviating the Respondent’s assertion that there was a real likelihood of bias. Gani denied Mr. Fadayiro’s affidavit, first in his affidavit sworn to on 8th February 1982, in which he asserted that at the sitting of the L.P.D.C. on 25th January 1982, Mr. Idowu Sofola sat as a member of the Committee and secondly in another affidavit of 9th February 1982 in which he swore that both Mr. Adetunji Fadayiro and Mr. C.O. Njemanze also sat as members.

Arguments on the Motion on Notice were heard by C.A. Johnson, J. (as he then was) on 25th February 1982. Dr. Onagoruwa led Counsel appearing for Gani, while Chief F.R.A. Williams, SAN, led the team appearing for L.P.D.C. The grounds of complaint by Gani, upon which all the arguments centred, were set out in paragraph 3 of a “Statement” dated 25th January 1982 which accompanied the aforementioned “Notice of Motion” of 28th January 1982. The said paragraph 3 reads:

“3. THE GROUNDS UPON WHICH THE SAID RELIEF IS SOUGHT ARE:-

(1) The active involvement of the office of the Attorney-General of the Federation as the Complainant, and the prosecutor in the complaint and charges against Chief Gani Fawehinmi (the Applicant) before the Legal Practitioners Disciplinary Committee in which the Attorney-General of the Federation is Chairman contravenes or is likely to contravene the Applicant’s fundamental right to fair hearing under Section 33 of the Constitution of the Federal Republic of Nigeria 1979.

“(2) The mode or manner by which the complaint and charges against the Applicant are to be considered and determined by the Legal Practitioners Disciplinary Committee contravenes or is likely to contravene the Applicant’s fundamental right under Section 33 of the Constitution of the Federal Republic of Nigeria 1979 in that:-

(a)The Constitution of the Legal Practitioners Disciplinary Committee vis-a-vis the complaint and charges against the Applicant does not secure the independence and impartiality of the Committee.

(b)The Chairman of the Legal Practitioners Disciplinary Committee is the Federal Attorney-General and Minister for Justice and he is also the complainant and the prosecutor.

(c)The complainant, Prosecutor and the Chief Judge (i.e. the Chairman) are one and the same person.

(d)proceedings of the said Legal Practitioners Disciplinary Committee by tile way it is constituted in this particular instance will be contrary to the principle of Natural Justice i.e. No one can be judge in his own cause (nemo judex in causa sua potest. )

(e)As a result of the part played by the Attorney-General of the Federation in bringing the complaint and charges to the Legal Practitioners Disciplinary Committee, there is a real likelihood of bias on his part as Chairman of the Disciplinary Committee in the consideration and determination of the said complaint and charges”

A further affidavit sworn to by Gani on 26th January 1982 shows how mentally disturbed he must have been and the fear that must have gripped him, for, in paragraphs 1 and 2 he swore as follows:

“1. That on Monday the 25th of January 1982 swore to an affidavit in support of my application for the enforcement of my fundamental right.

2. That on Monday the 25th January 1982, I appeared before the Legal Practitioners Disciplinary Committee in the Conference Room of the Nigerian Law School Victoria Island Lagos at 3.15 p.m. where I was told by the Chairman of the Committee – Chief Richard Akinjide – the Attorney-General of the Federation who presided that my case would be adjourned to February 22, 1982 when the trial would begin”

At the conclusion of hearing the learned trial Judge C.A. Johnson, J. (as he then was, for he is now the Chief Judge of Lagos State) decided in favour of Gani and came down heavily in favour of Gani’s view that there was, on the known facts, a real likelihood of bias, if the Committee as constituted, was allowed to determine the charges against the applicant. For its importance I set out the final part of his Ruling at pages 46 to 47 as follows:

‘The basis of the charges against the applicant is the appearance of an advertisement in the West Africa Magazine in which he was described as the famous, controversial and Nigerian reputable lawyer. What are the circumstances of this publication, who is responsible for the publication? What connection if any has the applicant with the descriptive words associated to his name? All these are probably questions which an explanation “from the applicant could have answered had the complainant not robbed itself of the opportunity of hearing from the applicant. Not having done that one can only conclude that the conclusion of the complainant is based on no other facts than the mere contents of the advertisement. Can it be said to be fair or impartial to proceed to conclusion that an offence had been committed by a practitioner or to frame charges against him on the basis of an assumption? It is circumstances as this that tend to create suspicion that there is a real likelihood of bias and that nobody who had behaved in that manner can be said to be independent and/or impartial in his view over the issue. In my view neither the members of the Executive Committee present at the meeting held at Calabar on the 25th of April, 1981 nor the Attorney-General of the Federation is competent to sit on the Disciplinary Committee if the provision of Section 33(1) of the Constitution is to be preserved and enforced. It is not for me to speculate on what steps ought or ought not to be taken to make it possible for the committee to be constituted to bring it within the provisions of Section 33(1) to ensure a fair hearing. It is only sufficient for me to hold as I here do, that the Disciplinary Committee set up to adjudicate on the charges against the applicant on the prevailing facts is in breach of the provision of Section 33(1) as being constituted in such manner as to be unlikely to secure its independence and impartiality. I am satisfied that there is a real likelihood of bias if on the known facts the committee as constituted is allowed to determine the charges against the applicant.

I therefore hold that the proper course for the Court is to prohibit the present committee as it is constituted from adjudicating on the charges framed against the applicant, and the court accordingly so orders.

The L.P.D.C., being dissatisfied with the learned trial Judge’s Ruling appealed to the Federal Court of Appeal (now the Court of Appeal) on three grounds which read:

“1. The learned Trial Judge erred in law in construing Section 33(1) of the Constitution without paying any regard what-so-ever to the provisions of subsection (2) of that Section when –

(a) In the context of the case before it, it is clear that the Legal Practitioners Disciplinary Committee was exercising the power to determine a question arising in the administration of the Legal Practitioners Act, the said Act provides for an opportunity for a person whose rights are affected by the decision of the said Committee to make representations to it before it makes its decision and the said Act contains no provision making the determination of the Committee final and conclusive.

(b) The Legal Practitioners Disciplinary Act contains adequate provisions which meet the requirements of Section 33(1) of the Constitution in all cases in which a legal practitioner accused of professional misconduct intends or desires to contest such accusation.

(c) In the premises, the court is not required to imply the rules of natural justice or the requirements of Section 33(1) of the Constitution in construing the provisions of the Legal Practitioners Disciplinary Act in so far as it deals with the functions and powers of the Disciplinary Committee.

2. The learned Trial Judge erred in law in failing to consider the implications of the Supreme Court decision in Falomo v. Lagos State Public Service Commission 1977 5 SC 51 which was cited to him and which is relevant to this case, having regard to the provisions of the Legal Practitioners Disciplinary Act, 1975. In particular the learned Judge failed to observe that the stage of the proceedings at which Section 33(1) of the Constitution will apply has not been reached in this case.

3. The learned Trial Judge erred in law in making a finding on the truth or otherwise of the Affidavit filed on behalf of the Respondents when the deponent was not cross-examined and there is nothing inherently improbable in the said affidavit”

The Court of Appeal in a unanimous and considered judgment of five Justices, dismissed the appeal. It is from that judgment that the L.P.D.C. has now appealed to the Supreme Court upon grounds of appeal which carry the same theme, and present more or less the same focus, as those argued before the Court of Appeal, the essence being the issue of natural justice with particular emphasis on Sections 33 and 42 of the Constitution of Nigeria and the Fundamental Rights (Enforcement Procedure) Rules 1979 made pursuant to the Section 42(3) of the same Constitution.

In the lead judgment of the President of the Court of Appeal, Nasir, P,C.A., to which the rest concurred, it was said, rightly in my view that “The crux of the matter is to give the person accused a fair hearing”

Towards the end of the said judgment, the Court of Appeal held that not all members of the Disciplinary Committee should be barred from taking part in the determination of the charges but that the disqualification should be limited “to those members tainted it) one form or the other” The salient part of the Court’s conclusion brings into prominence the gist of the complaint of the Applicant and reads:

“It will also, in my opinion, be unreasonable to disqualify all members of the Disciplinary Committee just because some of them investigated the particular dispute. Both Chief Williams and Chief Fawehinmi, in effect, have limited their arguments to those members tainted in one form or the other. Having given due consideration to the whole case I am of the opinion that only the particular Attorney-General of the Federation who gave the orders ought to be disqualified from sitting as chairman. In respect of the members of the National Executive of the Nigerian Bar Association only those who actively took part in formulating and making the complaint should be disqualified from sitting as members of the Disciplinary Committee.

In conclusion, I am of the opinion that this appeal fails. I hereby order that the Attorney-General of the Federation, (Chief Akinjide) and the three members of the Disciplinary Committee against whom complaint has been made are prohibited from taking part in any future proceedings as members of the Disciplinary Committee for the frame (sic) against the Respondent. Subject to the above the Legal Practitioners Disciplinary Committee is free to proceed with the charges framed against the Respondent if they so wish”

Each side filed its own brief which was later amplified in an oral argument before us. Both in his brief and oral argument, Chief F.R.A. Williams, SAN, for the appellant, submitted that the Court of Appeal failed to address itself to the proper interpretation and application of the provisions of section 33 of the 1979 Constitution which in its fundamental essence required that a person be given a hearing before his civil rights and obligations are finally determined-such hearing being before

“a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”

This latter requirement, he submitted, was rather a definition of the quality of the hearing that will satisfy the Constitutional provision. Section 33 of the Constitution, he submitted, was not meant to apply to the Disciplinary Committee whose function at that stage was merely administrative – not being the “Court” or “tribunal” which would decide the fate of the Legal Practitioner.

It was possible, he said, to attack the composition of to Appeal Committee of the Body of Benchers which had the duty to decide, on any ground envisaged by section 33 of the Constitution or to attack the Supreme Court which had the duty of hearing an appeal from the decision of the Body of Benchers. Those two bodies he said would have to conform with the said S.33 as a “court or other tribunal” – unlike the legal Practitioners Disciplinary Committee which, having regard to the provisions of the Legal Practitioners Act,

“is predominantly an administering authority of the type envisaged under Section 33(2) rather than “a court or tribunal” of the type envisaged under Section 33(1)”

Essentially, he said, the function of the Legal Practitioners Disciplinary Committee is to set the ball of disciplinary proceedings in motion – a test which is basically an administrative function although, like a decision to prosecute a criminal case, it is preceded by, and based upon, a quasi-judicial decision by the prosecutor to prosecute, which would not turn the prosecutor into a “court” merely because he decided to prosecute. The work of the Disciplinary Committee, he submitted, was the initiation of the process. Chief Williams cited a number of authorities in support of his propositions. WISEMAN v. BORNEMAN (1971) A.C. 297 at 310 – 311 referred to the statement of Lord Guest that where a statutory tribunal has been set to decide final questions affecting parties rights and duties the principles of natural justice should be applied but where the tribunal has to decide a preliminary point which does not finally decide the rights of the parties the court has to decide whether, and if so to what extent, the principles of natural justice should be followed by the Tribunal. He commended this Court to prudently bear in mind, in interpreting S.33 of the Constitution 1979, the observations of Lord Wilberforce in MINISTER OF HOME AFFAIRS v. FISHER (1980) A.C. 319 at 328, inter alia, that the interpretation of these “post-colonial” Constitutional instruments drafted for erstwhile British colonies starting with the constitution of Nigeria and including the constitution of Bermuda from which that appeal emanated, called for a generous interpretation avoiding what has been called “the austerity of tabulated legalism”.

Chief Williams submitted that the proper interpretation and application of the provisions of section 33 of the constitution, 1979, lies in the fundamental and essential requirement of that section that a person be given a hearing before his civil rights and obligations are finally determined, and referred to the observation of Mr. Justice Stone of the Supreme Court of the United States to that effect, in OPP COTTON MILLS INC. v. ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOUR 85 L.ED. 624 at 640. The anchor to which Chief Williams generally hinged his argument was his proposition that the work of the Legal Practitioners Disciplinary Committee was, at that stage of the proceedings against Gani, merely administrative and he referred to a number of decided cases, including:

DR. Falomo v. Lagos State Public Service Commission (1977) 5 S.C. 51

Twist v. Council of the University of Ran wick 136 C. L. R. 106 Literature Board of Review v. H.M.H. Publishing Co. Inc. (1964) Queensland Rep. 26

Ibeziako v. Commissioner of Police (1963)1 All N.L.R. 61

Marshall v. Jerico Inc. 64 L. Ed. 2nd 182.

Withrow v. Larkin 43 L. Ed. 2nd 712.

Attorney-General v. BBC (1981) A.C. 303 at 359 – 360.

B In fairness to him, he has conceded in his brief as hereinafter set out that if the Legal Practitioners Disciplinary Committee should be held to be a court or Tribunal” under Section 33(1) of the Constitution, the issue in this appeal must be resolved in favour of the Respondent.

Chief Gani Fawehinmi, the Respondent, submitted that

“THE ONLY ISSUE RAISED BY THE APPELLANT IS WHETHER THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE IS BOUND TO OBSERVE THE PRINCIPLES OF NATURAL JUSTICE OR PUT MORE CLEARLY, WHETHER THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE IS BOUND BY SECTION 33(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1979”

He contended that under the provisions of the 1962 Legal Practitioners Act there were two bodies dealing with discipline, namely, the Legal Practitioners Investigating Panel and the Legal Practitioners Disciplinary Tribunal. The former was exclusively charged under Section 6(3) with the duty of conducting a preliminary investigation into an allegation of professional misconduct against a legal practitioner, while the latter, under section 7 was vested with the power of trial and punishment. The arrangement he argued made for fairness. None of the panels would be an accuser and the judge at one and the same time.

He submitted that the 1975 Legal Practitioners Act made a fundamental change to the 1962 arrangement by establishing a Legal Practitioners Disciplinary Committee which, under its Section 9, was charged with the duty of CONSIDERING and DETERMINING any case of misconduct against a legal practitioner, and under section 10, with the power of TRIAL AND PUNISHMENT. By the 1975 Act, he said, the Legal Practitioners Investigating Panel was abolished.

He submitted finally that the Legal Practitioners Disciplinary Committee is a quasi-judicial tribunal whose decision

“can affect the rights of others particularly their means of livelihood”

and therefore ought to be made to observe the principles of natural justice of fair hearing, since it is a body which has to decide

“between an allegation and a defence”.

By reason of the powers invested on the Legal Practitioners Disciplinary Committee such as the power of withdrawal or temporary suspension, Chief Fawehinmi submitted, that the exercise of those powers involve the determination of civil rights and obligations within the context of S.33(1) of the 1979 Constitution.

It appears to me that a convenient starting point in the determination of this appeal may be a close-up examination of section 33, sub-sections (1) and – (2) of the 1979 Constitution. The sub-sections read:

33.-(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality

(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and conclusive”

The concessions made by the parties in their briefs have considerably narrowed the issue between them. For the Appellant Chief Williams has stated at page 7 of his brief that:

“…..The Appellant does not dispute that if in the context of the Legal Practitioners Act, the Legal Practitioner’s Disciplinary Committee is a “court or tribunal” as envisaged under section 33 of the Constitution, then, as constituted at all times material to this appeal, it ought to be prohibited from adjudicating on the complaint and charges against the Respondent”

In his own brief under the title “ISSUE” Chief Fawehinmi has stated, as hereinbefore set out, that the only issue is whether the Legal Practitioners Disciplinary Committee is bound, in deciding his matter, to observe the principles of natural justice.

Now, section 33(1) of the Constitution requires (excluding the words irrelevant for our purpose here) that

“in the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality” (Italics supplied for emphasis)

Thus, the court or tribunal, while determining the person’s civil rights and obligations

(a) must be impartial and independent

(b) must accord the individual a fair hearing.

The Legal Practitioners Disciplinary Committee was constituted under Section 9 of the Legal Practitioners Act, No.15 of 1975 and charged with the duty, under sub-section (1) thereof, of

considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Decree”

After “considering” and “determining” the case, the Legal Practitioners Disciplinary Committee is given powers under Section 10 of the Act of inflicting punishment on a Legal Practitioner whom it has “judged” guilty “of misbehaviour in his capacity as a Legal Practitioner”

The word “judged” is specifically used in section 10(1) (a) and section 10(2). These misbehaviours could be

(a) infamous conduct in any professional respect (S.10(1)(a));

or

(b) a conviction by any court in Nigeria having power to award imprisonment, of an offence which in the opinion of the disciplinary committee is incompatible with the status of a legal practitioner (S.10(1)(b));

Or

(c) the offence of getting himself enrolled as a legal practitioner by fraud (S.10(1)(c)).

In any of the above three situations, the disciplinary committee, may, if it thinks fit, give a direction

(i) ordering the registrar to strike the name of the legal practitioner off the roll (S.10(1)(c)(i));

or

(ii) suspending the legal practitioner from practice by ordering him not to engage in practice as legal practitioner for such priod as may be specified in the direction (S.10(1)(c)(ii));

or

(iii) admonishing the legal practitioner.

Having regard to the above, it is clear that the word “direction” used in Section 10 does not denote a mere innocuous and platitudinous instruction passed by a supervising agent, but assumes the character of a weighty judgment against a legal practitioner the impact of which could have the effect of damaging him and his professional career for ever.

It is true that such a legal practitioner could appeal, within 28 days from the date of service on him of notice of the direction, to the Appeal Committee of the Body of Benchers (Section 10(7) ibid) established under Section 11 and that a further appeal against the “direction” of the Appeal Committee of the Body of Benchers lies to the Supreme Court again within 28 days of the service of notice on the legal practitioner of the direction of the Body of Benchers Appeal Committee under S.11(5); that the direction of the Supreme Court is final S.12 ibid), yet, unless the legal practitioner exercises those rights of appeal, the decision of the Disciplinary Committee pursuant to section 10 would be final and all the directions given by it would be of full force and effect.(back to top?) I shall return to this later.

With much respect to Chief Williams, listening to him presenting his view point about the duties of the Legal Practitioners Disciplinary Committee viz-a-viz the offending legal practitioner, one is left with the cold impression of an Administrative Committee listlessly gathering materials, and administratively preparing the ground, for the real court or tribunal to later come forward and sit in judgment, thus presenting that committee’s job as almost inconsequential fm the purpose of the fate of the legal practitioner. That is far from being so. By the “direction” of the Legal Practitioners Disciplinary Committee (the choice of that word is regrettable for the word is a misnomer and is misleading) a legal practitioner against whom that “direction” has been given may well have taken his first step towards his jeopardy and his ruin, and may well be advised, in his own interest, to take immediate action at that stage to ward off the avalanche before it gathers momentum. Better still, where the option exists, for him to make his move ever before the “direction” is given. Permit this digression my Lords, for which I plead for indulgence, but I am merely emphasizing the importance of a decision of the Disciplinary Committee, as a decision (otherwise called “direction”) and, therefore, how necessary it is for the processes by which that decision was arrived at, to be correct. The decision may well be the beginning of an event which would be worse than death for him since disbarring him would affect his livelihood, his reputation and his profession.

Having said so, I now move on to a determination of whether the Legal Practitioners Disciplinary Committee, having regard to its duties, is a Tribunal which falls within the provision of section 33(1) of the Constitution or that which is envisaged by section 33(2) of the Constitution.

It goes without saying that the Disciplinary Committee is a Tribunal created by a Statute, namely the Legal Practitioners Act, 1975, and therefore is a statutory tribunal. But whether it is a quasi-judicial tribunal as contended by Gani, or merely an Administering Authority as contemplated by section 33(2) as postulated by Chief Williams, is the bone of contention.

It has been said by legal writers that the term “quasi-judicial” may have one of three meanings: firstly, it may describe a function that is partly judicial and partly administrative such as the making of a compulsory purchase order preceded by the holding of a judicial type local inquiry and the consideration of objections; secondly, it may alternatively describe the “judicial” element in a composite function – thus the holding of inquiry and considering objections in respect of a compulsory purchase order become “quasi-judicial” acts; and thirdly; it may describe the nature of the discretionary act itself where the discretion is unfettered. See: de Smith’s Judicial Review of I Administrative Action, 4th Edition p. 77).(back to top?)

But, as stated by John Willis in (1940) 53 Havard Law Review at 281, the tendency in recent years has been for the courts to move away from this classificatory approach in what he called a “highly acrobatic part of the Law” and about which de Smith states that although

“an aptitude for verbal gymnastics is of advantage, a commentator endowed with this attribute is frequently left wondering whether Mr. Justice Malaprop’s formulation is really more dexterous, more fortuitous more laboured or simply more ineffectual than his own would have been” (4th Ed. Review of Administrative Action at p.69).

One test for identifying judicial function has been said to be whether the performance of the function terminates in order that has conclusive effect. 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. Thus in IBRALEBBE v. R. (1964) A.C. 900, it is said that even though the Judicial Committee of the Privy Council has a special advisory jurisdiction under Section 4 of the Judicial Committee Act 1833, its decisions in other cases are in effect judgments, but take the form of advisory reports to Her Majesty, which are always promulgated by Order in Council.

Appellant has argued, possibly based upon the above premises, that the “direction” of the L.P.D.C. is not conclusive since appeals lie to the Appeal Committee of the Body of Benchers and finally to the Supreme Court, whose decision is final. Surely, the decision of the Privy Council which takes the form of advisory report to the Queen of England does not cease to be “a judgment” merely because it is couched as an advisory report which could, in theory, be refused by the Queen. In the same way the “direction” by the L.P.D.C. does not fail to be “a decision” by reason of the fact that an appeal lies against the decision to the Appeal Committee of the Body of the Benchers or by reason of the fact that the decision is not called “a decision” but “a direction”.

Another test in identifying whether statutory functions are of a judicial character is said to lie in certain formal and procedural attributes – those trappings and procedure adopted by the courts. Under Section 11(7) of the Legal Practitioners Act, 1975 the Body of Benchers may make rules prescribing the procedure to be followed in the conduct of appeals before the Appeal Committee of the Body of Benchers. I am not aware that any such rules have been made by the Body of Benchers and therefore the test of identification of whether or not the L.P.D.C. is judicial, from the procedure, cannot be applied to its deliberations or the appeal therefrom to the Appeal Committee of the Body of Benchers. But the same cannot be said of the appeal proceedings before the Supreme Court where the Supreme Court Rules obviously apply.(back to top?)

The Legal Practitioners Act, 1975 and the one of 1962 before it, were designed to regulate the practice of the legal profession in Nigeria and to govern the conduct of members of the Bar. The Justices of the Supreme Court who exercise the highest judicial functions of the country, the members of the Appeal Committee of the Body of Benchers, the members of the Body of Benchers, the members of the Legal Practitioners Disciplinary Committee, the lawyer whose conduct is questioned before that committee are all members of the Legal Profession. They are all Ministers in the Temple of Justice; they propound and profess the principles of justice and the Rule of Law; and they protect and defend the rights of the citizens against arbitrary encroachment from any’ quarters. Surely, the tribunal in which they sit to determine the propriety or otherwise of the conduct of one of its members in a professional capacity, cannot be anything less than quasi-judicial.

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. Sub-section 2 of section 33 states that “a law shall not be invalidated” by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person, provided the law makes provisions for that person to be heard before a decision is arrived at and does not make the decision final and conclusive. In the first place no one is seeking in these proceedings to invalidate the Legal Practitioners Act, 1975, or any of its provisions; in the second place, the Legal Practitioners Disciplinary Committee, having regard to all have earlier said, cannot be regarded as a mere Administering Authority of the type set up by the Executive in the exercise of its executive functions. It does not appear to me that section 33(2) applies.

de Smith has rightly stated that the more closely a statutory body resembles a court stricto sensu. the more likely is it that that body will be held to act in a judicial capacity and that judicial acts may be identified by reference to their formal, procedural or substantive characteristics, or by a combination of any of them. I would, however, be the first to admit that it is not always easy to carry out this classification of tribunals into “judicial” and “quasi-judicial”. The divided opinions of your Lordships of this court on this classification in HIS HIGHNESS OBA LAMIDI ADEYEMI & Ors. v. THE ATTORNEY-GENERAL OF OYO STATE & ORS. (1984) 1 S.C.N.L.R. 525 offers proof of the difficulty. In that appeal their Lordships Irikefe, Nnamani and Uwais, JJ.S.C., were of the view that the Boundary Settlement Commission appointed under the Local Government Boundaries and Communities Settlement Law was a “judicial tribunal”; Bello, J.S.C.. held that it was “an administrative tribunal exercising judicial powers”; Obaseki, J.S.C., was of the opinion that it was “an administrative or executive tribunal”; while I was of the view that it was simply “a tribunal”.

The more important thing, however, is a consideration of what the tribunal does and its application of the rules of justice to what it does – justifying the present attitude of the court, as hereinbefore stated, of not wasting their energies on fruitless classificatory exercise.

This Court in HART v. MILITARY GOVERNMENT OF RIVERS STATE And 2 Ors. (1976) 1 S.C. 211 was of the view that in earlier times the law was that an administrative body holding inquiry in respect of the retirement of a public officer, may be under a duty, in ascertaining facts, to act judicially notwithstanding that its proceedings have none of the formalities of and are not conducted in accordance with, the practice and procedure of a court of law. It was enough. the court said. if it was exercising judicial functions in the sense that it had to decide, on the materials before it “between an allegation and a defence” The court however accepted the modern concept which, it stated,

“is that the duty placed on such a body is to act fairly in all such cases. No label such as “judicially” or “quasi-judicially” are necessary as they only tend to confuse”.

Having now held that Section 33(1) of the Constitution, 1979, applies to the instant appeal, it is now left to apply its provisions to the facts of this appeal.

It is the accepted law that basic procedural and other requirements of the rules of natural justice have to be observed by every tribunal or authority which is under a duty to act judicially.(back to top?) In MARAN DANA MOSQUE (BOARD OF TRUSTEES v. BADI-UD-DIN MAHMUD & Anr. (1966) 1 ALL E.R. 545 at 550 P.C. a Minister was said by the Privy Council to be acting in a judicial or quasi-judicial capacity in satisfying himself whether there had been a contravention in respect of an Islamic College and must therefore observe the rules of natural justice. The same Court in ATTORNEY-GENERAL v. RYAN (1980) 2 W.L.R. 143 held that a Minister in Bahamas who, under section 7 of the Bahaman Nationality Act 1973, had power to refuse an application for registration, was a person having legal authority to determine a question affecting the rights of individuals and, therefore, was bound to observe the principles of natural justice when exercising that authority.

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”

That there is a real likelihood of bias is by itself a species of partiality and an adjudicating authority must be impartial – a quality accepted in jurisprudence to be of universal application (See: OBADARA v. COMMISSIONER OF POLICE (1965) N.M.L.R. 39 at 44 per Brett. Ag. C.J.N.) and therefore applicable as much to Nigeria as to all civilized countries. Kelly, L.C.B., in 1874 in WOOD v. WOAD (J874) L.R. 9 Ex. 190 at 196, dealing with the universality of the application of the principles of natural justice, stated that the rule of audi alteram partem.

“is not confined to the conduct of strictly, legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals”. (Italics mine)

The term “Real Likelihood” may not be capable of exact definition, since circumstances giving rise to it may vary from case to case, but it must mean, at least. “a substantial possibility of bias”. This may arise because of personal attitudes and relationships, such as: personal hostility; personal friendship; family relationship; professional and vocational relationship; employer and employee relationship; partisanship in relation to the issue at stake, and a whole host of other circumstances from which the inference of a real likelihood of bias may be drawn.(back to top?)

The problem highlighted in this appeal might not have arisen had the neat arrangement provided for, by the 1962 Legal Practitioner Act, No. 33 of 1962 been left in tact, 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.

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.

That principle was recently well articulated in England in a case in which the conduct of a Barrister was called in question. It is IN RE S. (A. BARRISTER) (1981)3 W.L.R. 129. In that case the General Council of the Bar became part of the Senate of the Inns of Court and Bar in 1974 but the Regulations of the Senate provided for it to operate independently in carrying out its duties, One of its Committees was the Professional Conduct Committee which had power to co-opt lay members and in practice always coopted at least one. The committee’s functions included the duty to prefer and prosecute disciplinary charges against members of the Bar before the Disciplinary Tribunal. The Disciplinary Tribunal acted on behalf of the Senate and was composed of five members: a judge of the High Court, a lay representative and three practising barristers including a member of the Inn of the Barrister charged. Such a disciplinary tribunal found proved charges of professional misconduct against the appellant, a barrister and a member of the Inner Temple and ordered that he be disbarred and expelled from his Inn. On an appeal by the Barrister, heard by three High Court Judges sitting as visitors to the Inner Temple, on the contention that the constitution of the Disciplinary Tribunal infringed the principle nemo judex in causa sua because the tribunal’s members included members of the Senate which had brought the charges and the majority of the tribunal members were Barristers, the appeal was dismissed because the General Council of the Bar, although part of the Senate, acted as an autonomous body for the purposes of its separate powers and duties and under the Regulations, a member of its Professional Conduct Committee was precluded from being a member of the Disciplinary Tribunal since the Regulations ensured that those who were responsible for investigation and prosecuting a complaint of misconduct did not adjudicate on the hearing of the complaint.

In England therefore, the existence of two separate bodies, namely

(i) the Disciplinary Committee

and

(ii) the Professional Conduct Committee whose functions included the duty of preferring and prosecuting disciplinary charges before the Disciplinary Tribunal of the General Council of the Bar made for such a separation of duties that the danger of violating that principle of natural justice would not readily arise.

It will be recalled, as stated earlier in this judgment, that the Respondent was not given the chance by the Attorney-General to answer the letter, Exhibit C, which brought the complaint about the Respondent’s conduct to his notice. Up to this date, Gani has not stated whether or not he inserted the advertisement complained of in the “WEST AFRICA” magazine. Unless the Attorney-General, Chief Richard Akinjide, had received word from the publishers of “West Africa” that it was the Respondent who inserted the advert, he must be deemed to have unreasonably assumed that the Respondent inserted the advert. Not to have allowed Gani to make any explanation before preferring charges, would have been presumptuous of the Attorney General.

One would have thought that an Attorney-General who by his training as a lawyer, and his position as Attorney-General, would have been endowed with a sharper instinct of the notions of natural justice than most others, would have accorded a colleague whose conduct was being pilloried, that elementary justice of hearing out his explanation, before proceeding to prefer charges and conducting his trial. The rule: audi alteram partem, runs as a principle inviolate through the blood of every lawyer. In LAW v. CHARTERED INSTITUTE OF PATENT AGENTS (1919)2 CH. D 276 it was held, inter alia, that a person who has a judicial duty to perform is disqualified from performing it if he has a bias which renders him otherwise than an impartial judge, or if he has so conducted himself in relation to the matters to be investigated as to lead a reasonable man to suspect that he may have such a bias.

A review of other decided cases in this country demonstrates the universality of the principle that in deciding matters which affect the rights of individuals, the rules of natural justice must be obeyed and adhered to. SALAWU OYELADE v. ARAOYE & ANR.(1967)1 All N.L.R. 321 established among other things that where the facts show a real likelihood of bias, even if unconscious, that is enough to hold that the rights determined have not been determined by a tribunal constituted in such a manner as to ensure its independence and impartiality. ANJOKU and Anor. v. NNAMANI (1953) 14 W.A.C.A. 357 concluded that an administrative officer conducting an inquiry under the Inter-Tribal Boundaries Settlement Law was a judicial tribunal subject to the incidents of natural justice. While holding in DR. DENLOYE v. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 All N.L.R. 306 that the Medical and Dental Practitioners Disciplinary Tribunal was entitled to decide its procedure and lay down its own rules for the conduct of enquiries regarding discipline, the Supreme Court was emphatic that it was of “utmost importance” that the inquiry be conducted in accordance with the principles of natural justice. Therefore the withholding in that case of part of the evidence led, from the Doctor whose conduct was being questioned, was a flagrant violation of that principle.

Respondent cited a number of other cases to illustrate the same principle of bias or likelihood of bias including LEESON v. GENERAL COUNCIL OF MEDICAL EDUCATION AND REGISTRA TION (1890) 43 Ch.D 366 (which was discussed and approved by this Court in DEDUWA v. OKORODUDU (supra); COOPER v. WILSON (1937)2 ALL E.R. 726 dealing with the dismissal of a police sergeant in the Liverpool city police force; and LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM 4 E.H.R.R.1 which discussed in the European Court of Human Rights, the suspension of the three doctors, from practising medicine in Belgium, by a disciplinary tribunal of the Belgian Ordre des medecins. But perhaps the nearest of those foreign cases for our purposes in this appeal are the Court of Appeal decision in RE GODDEN (1971)3 All E.R. 20 and the Hong Kong High Court case of WONG PUN CHEUK v. MEDICAL COUNCIL OF HONG KONG AND THE ATTORNEY-GENERAL (1964) The Hong Kong Law Reports (Part IV) 47. The most proximate, however, is RE GODDEN a cause dealing with either actual bias or with a real likelihood of bias. It concerned a Chief Inspector of Police of the Kent Police Force who by reason of his behaviour, it was arranged for him to see a Dr. B. who after interviewing him and reading a medical report earlier written by another doctor, said that he formed the opinion that the applicant was suffering from a mental disorder of paranoid type. When it was decided to take formal proceedings under regulation 73 of the Police Pensions Regulations (1971) which would require a Doctor’s report, the matter was referred to the same Dr. B. But the Chief Inspector refused to go to him whereupon the police authority decided to make their assessment of his disablement on such evidence and medical advice as they thought fit. The Chief Inspector applied for an order of Prohibition, prohibiting Dr. B, from determining whether he was permanently disabled and an order of Mandamus against the Kent Police Authority.

It was held that the decision of the selected medical practitioner on the questions referred to him “was a decision of judicial character” and must conform to the rules of natural justice and that an order of Prohibition would go to Dr. B. prohibiting him from determining the questions because he had already in his earlier report

“formed an opinion adverse to the applicant and had thus committed himself to a view in advance of an inquiry…..he could not therefore bring, or in any event appear to the applicant to bring, an impartial judgment to bear on the questions referred to him; accordingly Dr. B. was disqualified from taking on the matter”

In the instant appeal, Chief Richard Akinjide, by reason of the way he handled the Respondent’s matter was in like, although not exact, position as Dr. B. in Re Godden (supra). He had not, like Dr. B., earlier written out a judgment in Gani’s case, but his behaviour seemed to portray him as having arrived at a conclusion on the guilt of the Respondent, Gani, thus rendering him unfit to sit again, in judgment over the case, in the Legal Practitioners Disciplinary Committee.

The judgment of the Court of Appeal raised the issue whether the entire legal Practitioners Disciplinary Committee would be barred by the orderof Prohibition or whether the restriction would be limited to the Attorney-General, Chief Richard Akinjide, SAN, and the three other members who were alleged to have actively participated with him in investigating the matter, namely. Adetunji Fadayiro, Mr. D.C.O. Njemanze and Mr. Idowu Sofola. I am clearly in agreement with the Court of Appeal that for the reasons given by that Court, prohibition order must be restricted to the Attorney-General, Chief Richard Akinjide, SAN., and the above three named members of the Bar. To hold that the Disciplinary Committee, qua Committee, is barred from sitting over Gani’s matter, is, in effect to make it impossible for the Disciplinary Committee to exercise any disciplinary authority over him in this matter.

That is certainly not the intention. It will, however not be difficult to empanel a Committee whose members would have had no hand in investigating the charges brought against Gani and who would bring to the deliberations fresh, open and uncommitted minds.

In the result, this appeal by the Legal Practitioners Disciplinary Tribunal must fail, and hereby fails. The judgment of the Court of Appeal is hereby affirmed and the order it made hereby confirmed. The Respondent is entitled to the costs of this appeal which are hereby assessed at N300.00

IRIKEFE, J.S.C.: The facts giving rise to this case have been set out with precision by my learned brother ANIAGOLU, J.S.C. The issues of law were gone into with equal thoroughness by my learned brother aforesaid, who had before now, made available to me a draft of the judgment.

I am satisfied that all issues arising for a determination have been adequately dealt with in the lead judgment and I also would dismiss this appeal and hereby do so with costs as assessed in the lead judgment.

OBASEKI, J.S.C.: The issue for determination in this appeal has been narrowed down by Chief F.R.A. Williams, SAN. when in the appellant’s brief and in Court he said and conceded that:

“The appellant does not dispute that if in the context of the Legal Practitioners’ Act, the legal Practitioners’ Disciplinary Committee is a “court or tribunal” as envisaged under section 33 of the Constitution, then, as constituted at all times material to this appeal, it ought to be prohibited from adjudicating on the complaint and charges against the respondent”

This concession is reflected in the question for determination formulated by learned counsel for the appellant in his brief which reads:

“whether in the context of the Legal Practitioners Act, the Legal Practitioners Disciplinary Committee is a “court or tribunal” as envisaged by section 33(1) of the Constitution of the Federal Republic of Nigeria or whether it is no more than an administering authority of the type envisaged under section 33(2) thereof”

The respondent formulated the question of issue for determination slightly differently. According to him:

“The only issue raised by the appellant is whether the legal Practitioners Disciplinary Committee is bound to observe the principles of natural justice or put more clearly, whether the Legal Practitioners Disciplinary Committee is bound by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979”.

The issue in its two formulations has been given detailed consideration in the judgment just delivered by my learned brother, Aniagolu, JSC. the draft of which I had the privilege of reading in advance. I agree with him and I adopt his opinions as mine. However, a few comments of mine is desirable if nothing else, to give added weight and emphasis to those opinions.

The real motivation for the application of the respondent to the High Court, Lagos, Johnson, J. for the protection and enforcement of his fundamental right was the genuine fears that the Legal Practitioners Disciplinary Committee would sit to hear the charge against him in breach of section

33(1) of the Constitution of the Federal Republic of Nigeria 1979. This is disclosed clearly in the facts of the case.

The Attorney-General’s (Chief R.O. Akinjide’s) officers in the Ministry of Justice had served on the respondent 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 Africa. Before the time given him, i.e. 14 days in which to furnish an explanation a charge was preferred against him by the direction of the Attorney-General on which he was to be tried by the Legal Practitioners Disciplinary Committee. When he did appear before the Legal Practitioners Disciplinary Committee, sitting as Chairman was the Attorney-General, Chief R.O. Akinjide with other members sitting on either side. Several questions immediately came to mind. They are:

(1) Is the Legal Practitioners Disciplinary Committee as constituted an independent and impartial tribunal?

(2) Is the Legal Practitioners Disciplinary Committee a tribunal under section 33(1) of the Constitution of the Federal Republic of Nigeria?

(3) Is the Legal Practitioners Disciplinary Committee an administering authority or body or tribunal protected by section 33 (2) of the Constitution of the Federal Republic of Nigeria 1979?

(4) Is Chief R.O. Akinjide disqualified from sitting as a member of the Disciplinary Committee?

(5) Is the Legal Practitioners Disciplinary Committee bound to observe the rules of natural justice?

The Legal Practitioners Disciplinary Committee is a creature of the Legal Practitioners Decree No.15 of 1975 [See section 9(1)] and its membership consists of (a) the Attorney-General of the Federation as Chairman; (b)the Attorney-General of the States in the Federation; and (c) twelve legal practitioners of no less than ten years standing appointed by the Benchers on the nomination of Association [see Section 9(2)]. The quorum shall be 5, three of whom are the Attorneys-General including the Attorney-General of the Federation [see schedule 2 to the Decree paragraph 1].

The Attorney-General of the Federation or of a State, may, if he thinks fit, direct the Solicitor-General of the Federation or, as the case may be, of the state to act in its place as a member of the disciplinary committee [see 2nd schedule paragraph 5 to the Decree].

The Legal Practitioners Disciplinary Committee hereinafter referred to as 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 role has misbehaved in his capacity as a legal practitioner or should for any other reason be subject of proceedings under this Decree [section 9(1)].

In short, its duty is to consider and determine any case charging a legal practitioners with misbehaviour, i.e. breach of code of conduct for legal practitioners. Its duty is purely adjudicative and it has powers to inflict penalties for professional conduct [see section 10(1)]. It is not a retrial investigator and its members cannot, in my view, carry out a pretrial investigation and sit to adjudicate. This is what the learned Attorney-General of the Federation set out to do by the issue of the letter to the respondent. where –

1. a person whose name is on the roll of Legal Practitioners is judged by the disciplinary committee to be guilty or of infamous conduct;

2. a person whose name is on the role is convicted by any court in Nigeria having power to award imprisonment of an offence which is incompatible with the status of a legal practitioner; or

3. the disciplinary committee is satisfied that the name of any person has been fraudulently enrolled;

the disciplinary committee may, if it thinks fit, give a direction-

(a) ordering the registrar to strike that person’s name off the roll; and

(b) suspending that person from practice as a legal practitioner for such period as may be specified in the direction; or

(c) admonishing him.

The direction is equivalent to sentence passed by a court of law after conviction or a finding of guilt. [section 10 (1)]. Even the Supreme Court, acting under section 12 gives such a direction as is mentioned under subsection 10. (See section 12)

The Decree gives legal practitioners a right of appeal first to the Appeal Committee and from there to the Supreme Court.

In the case of the exercise of the right of appeal, the Disciplinary Committee is deemed to be a party to the appeal before the Appeal Committee of the Body of Benchers [section 10(7)] and the Appeal Committee is deemed to be a party to the appeal before the Supreme Court. It is this provision of the law that learned counsel for the appellants has urged in support of his submission that the Legal Practitioners Disciplinary Committee is an administering body.

The short answer is that it is the Decree that deemed the disciplinary committee to be a party to the appeal before the appeal committee and not because it is an administering body. It could however be suggested that it would be neater if the Decree makes provision for a neutral person who will be a party to the proceedings before the disciplinary committee, the appeal committee and the Supreme Court.

From the consideration of the various sections of the Decree, set out above, I find myself holding strongly to the view that the Disciplinary Committee is a tribunal when exercising its adjudicative duties. My view is also founded on the fact that by paragraph 2(1) of schedule 2 to the Decree, the Chief Justice of Nigeria is empowered to make rules for the purposes of any proceedings and as to the procedure to be followed and rules of evidence to be observed in proceedings before the disciplinary committee. The rules are to make provisions inter alia:

(a) for securing that notice of the proceedings shall be given, at such time and in such manner as may be specified by the rules to the person against whom the proceedings are brought.

(b) for determining who in addition to the person aforesaid, shall be a party to the proceedings;

(c) for securing a party to the proceedings to be represented by a legal practitioner;

(d) for enabling a party to the proceedings to be represented by a legal practitioner;

(e) subject to the provisions of subsection 7 of section 10 of this Decree, as to the costs of proceedings before the disciplinary committee. [see paragraph 2(2)(a, b, c, d, e) of schedule 2 to the Decree].

With all these trappings, the disciplinary committee is not a Court, it is a tribunal within the context of section 33(1; of the Constitution of the Federal Republic of Nigeria 1979 which reads:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

By the relevant provisions of the Legal Practitioners Act or Decree 1975 as amended, (section 9 and Schedule 2) the independence and impartiality of the tribunal is secured but if any of its members in any particular case is tainted with bias and instead of declining to sit insists on sitting along with other members; of the committee to adjudicate, then, the disciplinary committee will lose its impartiality as constituted and sit in breach of one of the rules of natural justice. Even if section 33(1) of the 1979 Constitution had not made entitlement to fair hearing as a fundamental right, it is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties rights and duties, if the statute is silent on the question, the courts will imply into the statutory provision a rule that the principles of natural justice should be applied [see Wiseman v. Borneman (1971) AC 297 at 310-311 per Lord Guest].

I am unable to accept the contention of the learned counsel for the appellant that the Disciplinary Committee is not entrusted with a final decision in any proceeding before it. I think it is and even if it is not, I share the view of Lord Guest when he said in Wiseman v. Borneman (supra).

“I can see no reason why, if the principles of natural justice have to be applied to a tribunal entrusted with a final decision, the same should not be true of a tribunal which has to decide a preliminary point which may affect the parties rights”

Having held that the Disciplinary Committee is a tribunal within the context of section 33(1) of the 1979 Constitution as amended, I hold that it must be constituted in such a way as to secure its independence and impartiality.

The appellant has not contested the facts found by the learned trial judge and since the narrow issue taken up has, in my view, been resolved against the appellant, the appeal must fail. The three important findings made by the learned trial judge are:

“(1) That the view of the Ministry of Justice contained in its letter of 1st December, 1981 – Exhibit C portrays a conclusion that the alleged conduct of the applicant constituted an offence under the appropriate rules, sufficient to justify reference of the matter to the Disciplinary Committee and it was so referred.

(2) The applicant was supposed to have been given 14 days within which to show cause by way of written explanation why the matter should not be referred to the Disciplinary Committee. There would appear to be an unfortunable haste on the part of the Federal Ministry of Justice in referring the matter to the Disciplinary Committee by the letter Exhibit D and the framing of the charges and statement of complaint against the applicant by Exhibit D2 and D3 without waiting for 14 days allowed the applicant to expire. In fact, it is pertinent to note that the charges were framed two days after Exhibit ‘C’ was written and dated the 1st December, 1981. The Complainant by this act robbed itself of the opportunity and a very important one at that, of being able to assess and determine whether or not the explanation of the applicant justifies a reference of the complaint to the Disciplinary Committee.

(3) All these facts and circumstances are sufficiently capable of I creating fear and suspicion in the mind of the applicant as to the question of a fair trial”

These findings are, in my view, fatal to the appellant’s contention.

Impartiality in the adjudicatory process is a sine qua non to a fair hearing. In the instant appeal, it is this requirement that the respondent complains will be absent from the Disciplinary Committee if the present membership which includes Chief R. O. Akinjide, the Attorney-General of the Federation and members of the National Executive Committee of the Nigerian Bar Association is allowed to stand.

Brett, Ag. C.J.N. said in Obadare and others v. President, Ibadan West District Grade Customary Court (1964) 1 All NLR 336 at 344 that:

“The principle that a “judge must be impartial” is accepted in the jurisdiction of any civilised country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decision”

See also Deduwa v. Okorodudu (1976 NMLR 236. In Kujore & Ors. v. Otubanjo (1974) 10 SC.173 at 181, the Supreme Court per Fatayi-Williams, JSC, (as he then was) dealing with a similar situation as the instant appeal, observed that no further proof of likelihood of bias was necessary since any person in the complainant’s position ‘would undoubtedly conclude that the President would not be impartial and would likely be biased against him’.

The previous knowledge of the facts and issues to be determined in a case may raise a real likelihood of bias. In Oyelade v. Araoye & Attorney-General of Western Nigeria (1968) NMLR.44 at 47, Brett, JSC. said:

“There can only be one standard of impartiality for persons called to discharge judicial functions whether as full time judges or in special occasions. An officer conducting an enquiry under the inter-tribal Boundary Settlement Law may not be bound by the Evidence Act and may be entitled to give weight to matters which would not be treated as relevant in a court of law but if he is to give a judicial decision, he must approach the enquiry with an open mind, he ought not to presume in advance that any particular solution is the right one”

See also R. V. Kent Police Authority and Others ex parte Godden (1971) 2 QBD 668, 669 and 670. In that case on the question whether it was proper for the authority to refer the issue for decision to the same Chief Medical Officer, Dr. Crosbie Brown, Lord Denning, the Master of the Rolls, answered in the negative since the doctor had already expressed an opinion adverse to the applicant and committed himself in advance. Chief R.O. Akinjide and members of the National Executive of the Nigerian Bar Association cannot play the role of prosecutors and adjudicators at the same time. See

Kanda v. Government of Malaya (1962) AC 322

State Civil Service Commission v. Buzugbe (1984) 7 SC.19

For the above reasons and those in the judgment of my learned brother, Aniagolu, JSC., I would and I hereby dismiss the appeal with N300.00 to the respondent.

ESO, J.S.C.: In a weekly newspaper called the “WEST AFRICA” was all publication dated 23rd March 1981. The publication which is an advertisement for a book on the Nigerian Constitution written by the Respondent Chief Gani Fawehinmi reads as follows:-

“A New Book on Nigerian Constitution,

Titled: NIGERIAN CONSTITUTIONAL LAW

REPORTS’ 1981 Volume One

Edited by

Chief GANI FAWEHINMI

the famous, reputable and controversial Nigerian Lawyer….”

I have italicized the last few words for emphasis).

These last emphasised words were charged as misconduct on the part of the publisher Gani Fawehinmi in that they constituted “advertising, touting and publicity which a legal practitioner should not be engaged in!

Now Gani Fawehinmi, is a legal practitioner, a Solicitor and Advocate of the Supreme Court of Nigeria and therefore he is subject to discipline by the Legal Practitioners’ Disciplinary Committee under the Legal Practitioners Decree 1975 No.15. The appellants that is-the Legal Practitioners’ Disciplinary Committee could only take proceedings of discipline against legal Practitioners under that Decree.

What are the facts in this case apart from the publication which I had referred to, in the magazine – West Africa? There was a letter from the Solicitor General of the Federation and Permanent Secretary Federal Ministry of Justice. The contents of that letter have been reproduced in the lucid judgment of my learned brother Aniagolu J.S.C. The letter expressed the view of the Ministry of Justice that the Respondent’s conduct offended against the Rules of Professional Conduct which prohibits Advertising, Touting and Publicity. Gani Fawehinmi was given fourteen days within which to explain why the matter should not be referred to the Legal Practitioners Disciplinary Committee for appropriate action. It should be noted at this stage that it was the Ministry of Justice under the portfolio of the Attorney General that had formed this opinion and indeed it was when the view of the Attorney General was drawn to this that the letter which had threatened reference to the Disciplinary Committee was written. This letter was dated 1st December 1981. And though Gani Fawehinmi had, by that letter fourteen days within which to explain his action, precisely two days later, the writer of the first letter Mrs. Fatunde who wrote on behalf of the Solicitor General, sent a notice of hearing of the charges now drawn up and signed by the same Mrs. Fatunde, on behalf of the Solicitor General to Gani Fawehinmi and definitely without hearing the explanation of Gani Fawehinmi or giving him the opportunity the Ministry of Justice earlier granted him.

Though my learned brother had set out these charges in his judgment, because of the Constitutional importance of this case, which is the only reason why I am adding my views to the judgment of my learned brother, I will set out the charges.

They are as follows-

COUNT ONE:

That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the roll of Legal Practitioners in Nigeria, on or about the 23rd of March, 1981 at Lagos, did commercially advertise the importance of your position as a lawyer in Nigeria at page 621 of periodical called “West Africa” of 23rd March 1981 issue by describing yourself as ‘the famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 33 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a Legal Practitioner within the intentment of Section 9(1) of the Legal Practitioners Act 1975 (No. 15) and therefore liable to be disciplined in accordance with the provisions of Section 10(1)(a) of the Legal Practitioners Act 1975.

COUNT TWO:

That you, Chief Gani O. Fawehinmi, being a legal practitioner and a person whose name is on the Roll of Legal Practitioners in Nigeria, on or about the 23rd of March 1981, at Lagos, caused or permitted to be published the importance of your position as a lawyer in Nigeria at page 621 of the periodical called ‘West Africa’ of 23rd March 1981 issue by describing yourself as ‘the famous, reputable and controversial Nigerian Lawyer’ in contravention of Rule 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January 1980 and you have thereby misbehaved in your capacity as a legal practitioner within the intentment of Section 9(1) of the Legal Practitioners Act 1975 (No. 15) and therefore liable to be disciplined in accordance with the provisions of Section 10(1) (a) of the Legal Practitioners Act 1975.

O. O. Fatunde (Mrs.)

(Prosecutor)

Dated this 3rd day of December, 1981.

Addressed for service:

Chief Gani O. Fawehinmi,

28, Sabiu-Ajose Crescent,

Surulere,

Lagos.

(Behind Adeniran Ogunsanya Shopping Centre.)”

The only clumsy sequence in the whole drama is the fact that though the letter from the Solicitor General dated 1st December 1981. would ex facie appear to have set the whole incident in motion, the evidence as per the affidavit of Mr. Fadayiro who was at that time the National President of the Bar Association was to the effect that as far back as April 24 1981 the matter had come for debate before the National Executive of the Bar Association. It is of interest though not much legal significance to my conclusion in this case that the present Attorney General Mr. Chike Ofodile S.A.N. was present though not at that time as the Attorney General of the Federation. Obviously, it was as a result of the report made by the National Executive of the Bar Association to the Attorney General, Richard Akinjide, that prompted the letter of 1st December which allowed Gani Fawehinmi 14 days to give his own side though the Attorney General thought (obviously too) two days later that his side should not be heard. It was a case of noli audi – alteram partem ante condemnation. And so the matter was placed before the Legal Practitioners Disciplinary Committee for determination with Akinjide the Attorney General that had hitherto been referred to in the prosecution of the matter as Chairman.

Gani Fawehinmi reacted, and very quickly too, with an application albeitex parte to the High Court of Lagos to prohibit the Legal Practitioners Committee from considering and determining the complaint and charges made against him. He based his application under section 42(3) of the Constitution of the Federal Republic of Nigeria 1979 and sought for the enforcement of his fundamental right under section 33 of the Constitution. On 27th January 1982, Candido Johnson J. as he then was, directed the Legal Practitioners Committee, after hearing this application, to stay further proceedings in respect of the charges against Gani Fawehinmi.

The matter was later fully argued before the Judge (Candido Johnson J.) and in a well considered judgment, after dealing in extenso with what he referred to as the twin policy supporting natural justice, that is, nemo judex in causa sua and audi alteram parte, finally made an order prohibiting the Committee “as it is constituted” he said, from adjudicating on the charges framed against the applicant.

Of course, the Committee appealed to the Court of Appeal. Learned counsel for the Committee in that Court, Chief F.R.A. Williams S.A.N., who incidentally was also the counsel for the Committee in the High Court, stated what he considered to be the real question in the appeal to be a determination whether the provisions of section 33 of the Constitution embodying the rules of natural justice have been or were likely to be violated. Gani Fawehinmi’s contention was not to challenge the provisions of the Legal Practitioners Act but the membership and a fortiori the Chairmanship of Akinjide in the Committee.

The Court of Appeal (Nasir P., Kazeem, Nnaemeka-Agu, Uthman Mohammed and Kutigi JJ.C.A.) again in a well considered judgment, dismissed the appeal of the Committee and Richard Akinjide (as -Attorney General of the Federation) and three members of the Committee were prohibited from taking part in any future proceedings as members of the Disciplinary Committee for the charges which had been framed against the Legal Practitioner Gani Fawehinmi. These briefly are the facts but the facts have been more fully set down in the judgment of my learned brother Aniagolu J.S.C.

Now, in this Court, the Committee has appealed on what their learned counsel, again Chief F.R.A. Williams S.A.N , has stated as question for determination. It is:-

“Whether in the context of the Legal Practitioners Act, the Legal Practitioners Disciplinary Committee is “a court or tribunal” as envisaged under s.33(1) of the Constitution of the Federal Republic of Nigeria or whether it is no more than an administering authority of the type envisaged under s.33(2) thereof”

In a major concession in his brief, Chief Williams said, and he had always maintained this, that if in the context of the Legal Practitioners Act, the Legal Practitioners Committee is a “Court or Tribunal” as envisaged under s.33 of the Constitution, then as constituted at all times material to this appeal the Committee ought to be prohibited from adjudicating on the complaint and charges against the Respondent Gani Fawehinmi. I think this is a very fair plank for the basis of the appeal.

In the submission of learned counsel the Disciplinary Committee is no more than an administering authority of the type envisaged under s.33(2) of the Constitution.

I think the crux of this matter must be in the meaning of “court or tribunal” under s.33 of the Constitution in so far as the Legal Practitioners Act 1975 is concerned. Is the Legal Practitioners Disciplinary Committee a “court or tribunal” or it is only the Appeal Committee of the Body of Benchers that is the court or tribunal. Chief Williams has argued, very forcefully too, that all the Appellant Committee does under the Act is to give a direction which does not take effect until after the expiration of the time limited for appealing against it. If no appeal is brought at the expiration of the time, the direction becomes effective. If however an appeal is brought against the direction then such direction would be effective if and only if the appeal is dismissed or withdrawn.

This, no doubt is an ingenious argument. But for a proper determination of the issues raised, the Legal Practitioners Act must be thoroughly examined. Sections 9 and 10of the Act establish the Disciplinary Committee and give it its functions. The provisions of these sections need not be set out in this judgment as there is easy access to the Act itself.

There is also, under the Act, constituted the Appeal Committee of the Body of Benchers and the constitution and functions are to be found in s.11 of the Act. The section also for the same reason needs not be set out in this judgment, more especially as there is already a lead judgment and this is just a judgment in concurrence.

A third organ is the Supreme Court which is referred to under subsection (5) of section 11 and the powers of which are fully set out in section 12 in so far as disciplinary measures are concerned.

Now to determine whether any or all these three organs qualify for “court or tribunal” my learned brother Aniagolu, J.S.C. would in my respectful view appear to have made a painstaking examination of this and I do not intend to duplicate his effort. Suffice it to say in addition that, with respect, I cannot subscribe to the argument that the direction given by the Legal Practitioners Disciplinary Committee being in abeyance until the expiration of an appeal period would not invoke the provisions of s. 33 of the Constitution which is a mere codification of the age-long principle of natural justice to wit – no one should be a judge in his own cause and also hearing the

other side before determination of a lis.

It is patent from the action of the Attorney-General in this case that he is not only a judge in his own cause – in effect he is complainant, prosecutor and judge – but also heavily biased against the respondent whom, though he allowed fourteen days to state his case, he also prevented him from so doing with so much swiftness that it would leave no one in doubt of his bias. Not less are the three members of the Bar Association who having condemned the respondent at their earlier Bar Executive would now sit in judgment over him. It is a case of “come here quickly for your assured condemnation” This court in Deduwa v. Okorodudu SC. (1976) NMLR. 236 had frowned heavily on bias or likelihood of bias. See also Anjoku v. Nnamani 14 WACA. 357.

What then vests judicial powers in a statutory body? First there are statutory bodies that go by a generic name “Tribunal” A tribunal is not necessarily a court of law stricto sensu but it has been a practice in common law countries to create independent statutory tribunals whose function is judicial. They are often called administrative tribunals but then they have judicial powers as they perform judicial or quasi judicial functions. The reasons for the creation of this type of tribunals might be stated positively as showing a greater suitability of such tribunals because of their expertise or if stated negatively, it reveals the inadequacy of the ordinary courts to cope with the varied challenges. They are cheaper and more speedy in their approach. They are more flexible and more informal than ordinary courts.

To go back to the investigation of an erring barrister, in England the Masters of the Bench of each of the four Inns of Court have a customary jurisdiction which has been delegated by the judges to disbar members of their Inn for professional misconduct.

In 1974 a joint body which represented the Inns of Court and the Bar was set up and that body now exercises the jurisdiction of discipline of a member of the Inns. Appeal lies from the decision of this body to the Lord Chancellor and the Judges of the High Court. Those judges who would have sat over the issue as Benchers do not as a matter of practice hear the appeal. See In re S. (A Barrister) (1970) 1 QB. 160. See also Re Yankson in the Time’s Report of January 14, 1971.

In Nigeria, there are three tiers but we are concerned in this appeal with the first tier and that is the stage of the involvement of the Appellant Committee. This, Chief Williams, has submitted is predominantly an administering authority which has no obligation to observe the norms of natural justice even if in the discharge of its duties it has to make a judicial or quasi-judicial decision. It is not easy to place a tribunal in the compartments of purely administering, predominantly administering or one with judicial or quasi judicial function. In my view, a purely administrative tribunal may turn judicial once it embarks on judicial or quasi judicial adventure. The test to my mind should be the function the tribunal performs at a particular time. During the period of in-course into judicial or quasi judicial function, an administrative body must be bound in process thereof to observe the principles that govern exercise of judicial function. “Even God himself did not pass sentence upon Adam before he was called upon to make his defence” See Dr. Bentley’s case in R. v. Chancellor of Cambridge University (1716) 1 Str. 557. In Ridge v. Baldwin (1964) A.C. Lord Reid was of the opinion, which opinion I share, that merely to describe a statutory function as administrative, judicial or quasi judicial is not by itself sufficient to settle the requirements of natural justice. This certainly leaves it open for the court to go into the substance of the very act of the tribunal rather than the form of description.

Nothing could be worse than the instant case in seeking an example of breach of natural justice. The accusers are not just merely the judges but they are in fact impatient accuser judges; and undisguisedly so. The Hong Kong case of Wong Pun Cheuk v. Medical Council of Hong Kong and the Attorney-General of Hong Kong Law Reports Part IV Oct-December, 1964 to which the respondent drew our attention is apt. There the Medical Director referred the case of a medical practitioner to the Medical Council and the Medical Director then went and sat as the Chairman of the tribunal to decide the complaint made by himself. The Hong Kong court declared the action of the tribunal against the principles of natural justice as I will also in agreement with my learned brother Aniagolu, J.S.C. agreeing with the reasons which he had so much in detail put across, hold the action of the appellant in this case to be in offence of the clear and age-long principles of natural justice.

With the involvement of the Ministry of Justice as it is in this case I cannot see how the case against the respondent could ever rightly go on if the Attorney-General, not particularly Akinjide, remains the Chairman of the Legal Practitioners Disciplinary Committee as provided for by section 9(2) of the Legal Practitioners Act. I agree with the order made by my brother Aniagolu, J.S.C.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Aniagolu, J.S.C. I entirely agree with the judgment and only wish to add the following by way of emphasis. The Legal Practitioners Disciplinary Committee was established under the provisions of section 9 of the Legal Practitioners Act, 1975(1975 No. 15) which reads –

“9(1) There shall be a committee to be known as the Legal Practitioners Disciplinary Committee (hereafter in this Act referred to as the “disciplinary committee”) which shall be charged with the

duty of considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Act.

(2) The disciplinary committee shall consist of –

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

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

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

(3) The provisions of Schedule 2 to this Act shall have effect in relation to the Disciplinary Committee”

It is clear from the words in italics in subsection thereof that the nature of the function of the Disciplinary Committee is to hear and decide cases of indiscipline alleged against legal practitioners. The function is made clearer by the type of sanction or punishment which the Disciplinary Committee is empowered to impose under section 10 of the Act; which in part provides as follows-

“10(1)Where –

(a) a person whose name is on the roll is judged by the disciplinary committee to be guilty of infamous conduct in any professional respect; or

(b) a person whose name is on the roll is convicted, by any court in Nigeria having power to award imprisonment, of an offence (whether or not an offence punishable with imprisonment) which in the opinion of the disciplinary committee is incompatible with the status of a legal practitioner; or

(c) the disciplinary committee is satisfied that the name of any person has been fraudulently enrolled, the disciplinary committee, may, if it thinks fit, give a direction

(i) ordering the registrar (i.e. Registrar of the Supreme Court) to strike that person’s name off the roll; or

(ii) suspend that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction;

(iii) admonish that person, and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing as the circumstances of the case may require.

(2) Where a person whose name is on the roll is judged by the disciplinary committee to be guilty of misconduct not amounting to infamous conduct which, in the opinion of the disciplinary committee, is incompatible with the status of a legal practitioner, the disciplinary committee may, if it thinks fit, give such directions as is authorised by paragraph (c)(ii) or (iii) of subsection (1) above; and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing, as the circumstances of the case may require”

Any legal practitioner found guilty by the Disciplinary Committee and on whom any of the directions mentioned in subsections (1) and (2) of section 10 of the Act is imposed, may appeal against such direction under the provisions of subsection (7) of the Act, to the Appeal Committee of the Body of Benchers and thence to this Court. It seems to me at this stage that the function of the Disciplinary Committee is quasi-judicial. However the position appears to be hazy when one considers that by the provisions of subsection (7) the Disciplinary Committee could appear as respondent before the Appeal Committee of the Body of Benchers to defend its decision. The subsection reads:

“(7) The person to whom such a direction relates may, at any time within twenty-eight days from the date of service on him of notice of the direction, appeal against the direction to the Appeal Committee of the Body of Benchers established under section 11 of this Act; and the disciplinary committee may appear as respondent to the appeal and, for the purpose of enabling directions to be given as to the costs of the appeal and the proceedings before the disciplinary committee, shall be deemed to be a party thereto whether or not it appears on the hearing date”

There can be no doubt that this is a marked departure from the normal practice which pertains to courts and quasi-judicial bodies. The peculiarity or uniqueness notwithstanding, the fact remains that in the proceedings before it, the Disciplinary Committee exercises powers which are judicial in nature. As already shown, the Disciplinary Committee is a body established under the Legal Practitioners Act, 1975. I am therefore satisfied that the Disciplinary Committee is a “tribunal” within the meaning of section 33 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979- See Oba Adeyemi & Ors. v. Attorney-General of Oyo State & Ors. (1984) 1 SCNLR. 525.

Since the Disciplinary Committee is a tribunal in the context of section 33(1). Then, it is bound to observe the rules of natural justice. Chief Williams, learned counsel for the appellants had conceded this. The way and manner in which the respondent’s case was treated by the then Attorney-General of the Federation certainly leaves much to be desired. The respondent’s fear that he was not likely to get fair trial with the Attorney-General as member and Chairman of the Disciplinary Committee, was justifiably aroused.

It is manifest from the circumstances of this case that, if situation such as the present is to be avoided. a clear demarcation has to be drawn between the functions of the Attorney-General of the Federation as investigator, prosecutor and judge under the 1975 Act. One of the ways to achieve this is to return to the old practice under the Legal Practitioners Act. 1962 which created two distinct bodies to deal. respectively. with investigation and discipline. These bodies were the Legal Practitioners Investigation Panel and the Legal Practitioners Disciplinary Committee. Although under the old scheme the Attorney-General of the Federation was a member of the two bodies (see section 6 of the Legal Practitioners Act 1962) adequate provisions were made excluding the Attorney-General or any member of the two bodies from taking part in both the proceedings of the bodies.

For these reasons and those ably stated in the judgment of my learned brother Aniagolu, J.S.C.. I too will dismiss the appeal with N300.00 costs to the respondent.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the illuminating judgment of my learned brother. Aniagolu, J.S.C. with which I respectfully and entirely agree. I have decided to make my own contribution of this nature, because of the importance, in my respectful opinion, this Court undoubtedly attaches to the issues involved in this appeal.

This appeal is by the Legal Practitioners Disciplinary Committee hereinafter referred to as the Appellant Committee. The appeal is against the decision of the Court of Appeal. On the 8th March, 1984 the Court of Appeal unanimously dismissed the appeal of the Appellant Committee against the judgment of Candido Johnson J. of the High Court of Lagos State sitting in Lagos. On the 15th April, 1982, Candido Johnson, J. (as he then was) granted an order of prohibition on the application of the respondent against the appellants as constituted from adjudicating on the charges framed against him. The issue involved in this appeal is one of considerable constitutional importance and of immense legal importance and interest to the legal profession as a whole. The issues involved in this appeal are better appreciated if considered in the background of the application, and the reliefs sought from the High Court. The facts in support of the application are not disputed. The respondent, who was the applicant and whose predicament gave rise to this litigation is a member of the Nigerian Bar. His name is on the roll of solicitors. He is therefore bound by all regulations governing the practice of the law. He is also a member of the Nigerian Bar Association. The appellant is a body established under S.9(1) of the Legal Practitioners Decree No. 15 of 1975, “charged with the duty of considering and determining any case where it is alleged that any person whose name is on the roll has misbehaved in his capacity as a legal practitioner…..” Appellant Committee is composed of (1) Attorney-General of the Federation, who shall be the Chairman, (2) Attorneys-General of the States in the Federation (3) Twelve Legal Practitioners of not less than ten years standing appointed by the Body of Benchers on the nomination of the Nigeria Bar Association.

On the 24th April, 1981, a meeting of the National Executive of the Nigeria Bar Association was held at Calabar. Present at the meeting were A. Fadayiro, the National President of the Association, B.A. Ajibola, Idowu Sofola, D.C.O. Njemaze, Chike Ofodile, S.A.N. At this meeting, under General Matters, the question of the publication in the “West Africa” magazine issue of 23rd March, 1981, at page 621, of an advert concerning the respondent was discussed. The advert reads,

“A New Book on Nigerian Constitution, Titled Nigerian Constitutional Law Reports 1981 Volume One Edited by Chief Gani Fawehinmi, The famous, reputable and controvc;rsial Nigerian Lawyer……”

It was reported in the minutes of the meeting that members expressed strong disapproval of the advertisement and resolved that the matter be referred to the Appellant Committee. As was resolved, the matter was duly reported to the Honourable Attorney-General presumably in his capacity as Chairman of the Appellate Committee.

On the 3rd December, 1981, the Honourable Attorney-General wrote to the respondent with reference to the advertisement discussed at the meeting of the National Executive of the Nigeria Bar Association at Calabar on the 24th April, 1981, but not referring to the resolution of the meeting and said,

“EXHIBIT’C’

FEDERAL MINISTRY OF JUSTICE,

INDUSTRIAL AND MERCANTILE LAW DIVISION

IKOYI, LAGOS.

REF.NO.DI.1/283/70

1ST DECEMBER, 1981

CHIEF G. O. FAWEHINMI,

28, SABIU AJOSE CRESCENT,

SURULERE.

DEAR SIR,

THE ATTENTION OF THE HON. THE ATTORNEY-

GENERAL OFTHE FEDERATION AND MINISTER OF JUSTICE

HAS BEEN DRAWN TO THE ADVERTISEMENT CONTAINED

ON PAGE 621 OF MARCH 23RD ISSUE OF ‘WEST AFRICA’

CAPTIONED AS FOLLOWS:-

‘A NEW BOOK ON NIGERIAN CONSTITUTION

TITLED

NIGERIAN CONSTITUTIONAL LAW REPORTS

1981 VOLUME ONE

EDITED BY

CHIEF GANI FAWEHINMI

THE FAMOUS, REPUTABLE AND CONTROVERSIAL

NIGERIAN LAWYER….’

2. IT IS THE VIEW OF THIS MINISTRY THAT THE CONDUCT OFFENDS AGAINST 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 PROHIBITS ADVERTISING, TOUTING AND PUBLICITY.

3. I AM THEREFORE DIRECTED BY THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION TO REQUEST YOU TO SHOW CAUSE BY WAY OF WRITIEN EXPLANATION WITHIN 14 DAYS HEREOF WHY THE MATTER SHOULD NOT BE REFERRED TO THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE FOR APPROPRIATE ACTION.

YOURS FAITHFULLY,

(SGD.) O. O. FATUNDE (MRS.)

FOR: SOLICITOR-GENERAL OF THE

FEDERATION AND PERMANENT SECRETARY”

On the 3rd December, 1981, a notice of hearing before the Appellant Committee and the charges against the respondent in respect of the said advertisement as contraventions of Rules 33 and 34 of .he Rules of Professional Conduct, which prohibits advertising, touting and publicity, were sent H to the respondent. It is clear from the papers sent to the respondent by the Federal Ministry of Justice that the Federal Ministry of Justice was the complainant, and the charges against the respondent were prepared by him.

It seems obvious from the facts, and this was emphasised by the respondent in his affidavit, that, although the Honourable Attorney-General of the Federation in his letter of the 3rd December, 1981 gave the respondent 14 days to explain the circumstances of the alleged publication, the charges were filed before the Appellant Committee without waiting for the explanation.

In his affidavit in this case, the President of the Bar Association deposed that it was the National Executive Committee of the Association which referred the matter to the Attorney-General of the Federation. The Appellant Committee which was scheduled to sit over and consider the charges against respondent for the purposes of determination whether this was in violation of Rules 33 and 34 of Rules of Professional Conduct had as its members, the Attorney-General of the Federation and three members of the National Executive Committee of the Nigeria Bar Association, who participated in the 24th April meeting at Calabar. These are Messrs. A. Fadayiro, Idowu Sofola and D.C.O. Njemanze. It is against this composition of the Appellant Committee that respondent has brought his application by originating motion under S. 42 of the Constitution to prohibit an infringement of his rights under S.33(1) as follows-

“AN ORDER PROHIBITING THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (the respondent) from considering and determining the complaint and charges made against Chief Gani Fawehinmi before the respondent”

The grounds upon which the said relief are sought are

“(1) The active involvement of the office of the Attorney-General of the Federation as the complainant, and the prosecutor in the complaint and charges against Chief Gani Fawehinmi (the applicant) before the Legal Practitioners Disciplinary Committee in which Attorney-General of the Federation is the Chairman contravenes or is likely to contravene the Applicant’s fundamental right to fair hearing under Section 33 of the Constitution of the Federal Republic of Nigeria 1979.

(2) The mode or manner by which the Complaint and charges against the Applicant are to be considered and determined by the Legal Practitioners Disciplinary Committee contravenes or is likely to contravene the applicant’s fundamental right under Section 33 of the Constitution of the Federal Republic of Nigeria 1979 in that:-

(a) The Constitution of the Legal Practitioners Disciplinary Committee vis-a-vis the complaint and charges against the applicant does not secure the independence and impartiality of the Committee.

(b) The Chairman of the Legal Practitioners Disciplinary Committee is the Federal Attorney-General and Minister of Justice and he is also the complainant and the prosecutor.

(c) The complainant, Prosecutor and the Chief Judge (i.e. the (Chairman) are one and the same person.

(d) Proceedings of the said Legal Practitioners Disciplinary Committee by the way it is constituted in this particular instance will be contrary to the principle of Natural Justice i.e. No one can be judge in his own cause (nemo judex in causa sua potest).

(e) As a result of the part played by the Attorney-General of the Federation in bringing the complaint and charges to the Legal Practitioners Disciplinary Committee, there is a real likelihood of bias on his part as Chairman of the Disciplinary Committee in the consideration and determination of the said complaint and charges”

Put briefly the grounds on which Respondent relied for his application are those clearly set put at page 3 of Counsel for the Appellant’s brief, which I adopt.

They are as follows:

“(1) “The Attorney-General of the Federation in his capacity as Chairman of the Appellant Committee is “the complainant and the prosecutor” as well as the Chief Judge.

“(2) The Constitution of the Appellant Committee is such as to create a real likelihood of bias by reason of the position of the Attorney-General of the Federation”

This formulation of the grounds for the .application in the originating notice of motion, calls for a consideration of the provisions of section 33 of the Constitution 1979 in its application to the facts of the case. Differently formulated but with the same result the cardinal issues raised in my opinion are whether

(a) In view of the provisions of S.33(1) of the Constitution the Attorney-General as complainant to the Appellant Committee, can also as its chairman sit to consider the allegations made against the Respondent.

(b) Again whether members of the National Executive Committee of the Nigeria Bar Association who actively participated in the allegations before referring the matter to the Attorney-General can sit as members of the Appellant Committee for the purposes of considering and determining the conduct of the Respondent.

Both Courts below have found in favour of the Respondent, although the Court of Appeal modified the order of the trial Judge.

In granting the application for prohibition as claimed, Candide Johnson, J, said, at p. 46

“In my view neither the members of the Executive Committee present at the meeting held at Calabar on the 25th April, 1981, nor the Attorney-General of the Federation is competent to sit on the Disciplinary Committee if the provision of section 33(1) of the Constitution is to be preserved and enforced. It is not for me to speculate on what steps ought or ought not to be taken to make it possible for the Committee to be constituted to bring it within the provisions of section 33(1) to ensure fair hearing. It is only sufficient for me to hold as 1 do, that the Disciplinary Committee set up to adjudicate on the charges against the applicant on the prevailing. facts is in breach of the provision of section 33(1) as being constituted in such a manner as to be unlikely to secure its independence and impartiality. I am satisfied that there is a real likelihood of bias on the known facts if the Committee as constituted is allowed to determine the charges against the applicant”

The effect of this ruling is that the present statutory composition of the Appellant Committee irrespective of changes in the persons who constitute its members will necessarily constitute an infringement of the provisions of section 33(1) as claimed. The modification of the judgment of the learned Judge’s order by the Court was in my opinion, with a view to avoiding that situation. The Court of Appeal held at p.94

“Having given due consideration to the whole case I am of the opinion that only the particular Attorney-General of the Federation who gave the orders ought to be disqualified from sitting as chairman. In respect of the members of the National Executive of the Nigeria Bar Association only those who actively took part in formulating and making the complaint should be disqualified from sitting as members of the Disciplinary Committee”

This is a clear rejection and reversal of the holding in the High Court that as long as the Attorney-General is the prosecutor in the Disciplinary Committee and is also the statutory chairman of the Appellant Committee, there is an infringement of the provisions of section 33(1). There is no cross-appeal before this Court in respect of this holding in the Court of Appeal, although in argument before us Chief Gani Fawehinmi did not seem to have accepted the modification by the Court of Appeal in that regard.

The Appellant Committee has filed four grounds of appeal, which (excluding particulars) are as follows:

“GROUNDS OF APPEAL

1. The Federal Court of Appeal erred in law and misunderstood the submissions made to them on behalf of the Appellant and thereby failed to give adequate consideration to the effect to sec. 33 of the Constitution as it applies to the proceedings before the Legal Practitioners Disciplinary Committee.

2. The Federal Court of Appeal erred in law in holding (per Nasir, P) as follows:

“Having (been) given the power to hear the complaint, the Disciplinary Committee is, to say the least, a quasi-judicial tribunal and must therefore observe the rules of natural justice (pertaining to bias) as enshrined in section 33 of the Constitution of the Federal Republic”

3. The Federal Court of Appeal misdirected itself in law in failing to appreciate the true meaning and intent of Section 33(2) of the Constitution and the decision of this Court in Falomo v. Lagos State Public Service Commission (1977) 5 SC.56.

4. The Federal Court of Appeal erred in law in failing to observe that even if all the facts on which the Respondent relies are-established, he is not entitled to the relief granted to him by that Court”

Since the facts are not in issue and are admitted, what appears to be in issue in this Court is the correct legal status of the Legal Practitioners’ Disciplinary Committee created under S.9 of the Legal Practitioners Decree No. 15 of 1975. Or to put it in the ipsissima verba of the appellants,

“Whether in the context of the Legal Practitioners’ Act, the Legal Practitioners’ Disciplinary Committee is a “Court or Tribunal” as envisaged under section 33(1) of the Constitution of the Federal Republic of Nigeria or whether it is no more than an administering authority of the type envisaged under section 33(2) thereof’.

This is a higher abstraction in the syllogism to determine the real issues between the respondent and the appellants. The respondent’s contention is that his right to practice the profession of law is threatened by the attempt of the appellant committee as constituted to consider and determine the allegations of professional misconduct against him.

The contention of Counsel for the Appellant Committee is that Appellant Committee is not an adjudicatory but an administering authority to which the provisions of section 33(1) does not apply.

It is common ground between the parties to this appeal that the provisions of section 33 of the Constitution is applicable in the determination of the charges against the respondent by the appellant committee. Section 33(1) of the Constitution provides that the respondent is “entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality” It is the contention of the respondent that the Appellant Committee is not such a “tribunal…..constituted in such manner as to secure its independence and impartiality” This is because, it is contended, of the presence in the composition of the Appellant Committee of the Attorney-General and the three other members who were actively involved in the initiation of the allegations and charges against the respondent.

The contention of the Appellant Committee is that it is the Appeal Committee of the Body of Benchers that effectively plays the role of the “court or other tribunal” within the meaning of S.33 of the Constitution. It was argued that the Appellant Committee as constituted is not qualified to exercise the functions of a “court or other tribunal” within the meaning of section 33 of the Constitution but could lawfully carry out the functions conferred on it under the provisions of section 9,10, and 11 of the Legal Practitioners Decree No. 15 of 1975.

The Committees under the Act.

It is essential for a proper understanding of the functions of the Legal Practitioners’ Disciplinary Committee, the Appeal Committee of the Body of Benchers, and to determine whether either or both or neither of these bodies falls within the meaning of the expression, “court or other tribunal in section 33(1) of the Constitution 1979, to consider the provisions of sections 9, 10 (1)(2)(3)(5)(6)(7)(8)(9),11,12 of the Legal Practitioners’ Decree No.15 of 1975.

“9.(1) There shall be a committee to be known as a Legal Practitioners Disciplinary Committee (hereafter in this Decree referred to as “the disciplinary committee”) which shall be charged with the duty of considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Decree.

(2) The disciplinary committee shall consist of –

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

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

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

(3) The provisions of Schedule 2 to this Decree shall have effect in relation to the disciplinary committee.

10. (1) Where-

(a) a person whose name is on the roll is judged by the disciplinary committee to be guilty of infamous conduct in any professional respect; or

(b) a person whose name is on the roll is convicted, by any court in Nigeria having power to award imprisonment, of an offence (whether or not an offence punishable with imprisonment) which in the opinion of the disciplinary committee is incompatible with the status of a legal practitioner; or

(c) the disciplinary committee is satisfied that the name of any person has been fraudulently enrolled, the disciplinary committee, may, if it thinks fit, give a direction-

(i) ordering the registrar to strike that person’s name off the roll; or

(ii) suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or

(iii) admonishing that person, and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing as the circumstances of the case may require.

(2) Where a person whose name is on the roll is judged by the disciplinary committee to be guilty of misconduct not amounting to infamous conduct which, in the opinion of the disciplinary committee, is incompatible with the status of a legal practitioner, the disciplinary committee may, if it thinks fit, give such a direction as is authorised by paragraph (c)(ii)(iii) of subsection (1) above; and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing, as the circumstances of the case may be.

(3) The disciplinary committee may, if it thinks fit, defer or further defer its decision as to the giving of a direction under the foregoing subsections until a subsequent meeting of the committee; but no person shall be a member of the disciplinary committee for the purposes of reaching a decision which has been deferred or further deferred unless he was present as a member of the committee when the decision was deferred.

5. For the purposes of subsection (1) of this section, a person shall not be treated as convicted as mentioned in paragraph (b) of that subsection unless the conviction stands at a time when no appeal or further appeal is pending or may (without extension of time) be brought in connection with the conviction.

(6) When the disciplinary committee gives a direction under subsection (1) or subsection (2) of this section, the disciplinary committee shall cause notice of the direction to be served on the person to whom it relates.

(7) The person to whom such a direction relates may, at any time within twenty-eight days from the date of service on him of notice of the direction, appeal against the direction to the Appeal Committee of the Body of Benchers established under section 11 of this Decree; and the disciplinary committee may appear as respondent to the appeal and, for the purpose of enabling directions to be given as to the costs of the appeal and of proceedings before the disciplinary committee, shall be deemed to be a party thereto whether or not it appears on the hearing of the appeal.

(8) A direction of the disciplinary committee under subsection (1) or C subsection (2) 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;

(b) 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.

(9) Where a direction is given under subsection (1) or (2) of this section for the refund of moneys paid or the handing over of documents or any other thing and within twenty-eight days of the date of the direction (or where an appeal is brought, on the dismissal of the appeal) the legal practitioner fails to comply with the direction, the disciplinary committee may deal with the case as one involving misconduct by the legal practitioner in his professional capacity.

11 (1) There shall be a committee to be known as the Appeal Committee of the Body of Benchers (hereafter in this Decree 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 Decree;

(b) two Attorneys-General in the Federation;

(c) two Judges of the High or Higher 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 therefor such direction as it thinks ought to have been given, being a direction which, under section 10 of this Decree, 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 appeal 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 withdraw 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 in accordance with the foregoing provisions of this subsection.

(7) Subject to this Decree, the Body of Benchers may make rules prescribing the procedure to be followed in the conduct of appeals before the appeal committee.

12 (1) Where it appears to the Supreme Court that a person whose name is on the roll has been guilty of infamous conduct in any professional respect with regard to any matter of which the Court or any other Court of record in Nigeria is or has been seized, the Supreme Court may if it thinks fit, after hearing any representations made and evidence adduced by or on behalf of that person and such other persons as the Court considers appropriate, give such a direction as is mentioned in subsection (1) of section 10, and the direction shall take effect forthwith; and except in the case of an admonition the court shall cause notice of the direction to be published in the Gazette.

(2) Where it appears to the Chief Justice that a legal practitioner should be suspended from practice, either with a view to the institution against him of proceedings under this Decree before the disciplinary committee or while any such proceedings are pending, the Chief Justice may if he thinks fit, after affording the practitioner in question an opportunity of making representations in the matter, give such direction as is authorised by paragraph (ii) of subsection (1) of section 10; and in deciding whether to give such a direction in consequence of the conviction of a legal practitioner, the Chief Justice shall be entitled to disregard the provisions of subsection (5) of that section”

These sections provide for three tribunals with respect to disciplinary proceedings against Legal Practitioners under the Legal Practitioners Decree. These are-

1. The Legal Practitioners Disciplinary Committee established C under section 9.

2. The Appeal Committee of the Body of Benchers established under S.11(1).

(3) The Supreme Court of Nigeria under S.11(5). As I will show shortly on analysis of the functions and powers of these bodies, whereas proceedings must originate in the Legal Practitioners’ Disciplinary Committee and may appropriately be regarded as a Court of first instance, the two latter bodies exercise appellate jurisdiction and can only examine matters considered and determined in the Legal Practitioner’s Disciplinary Committee. Each of these bodies is a “court or tribunal” within S.33(1) of the Constitution 1979.

A. The Legal Practitioner’s Disciplinary Committee. This 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 this Decree. – See S.9 (1)

The committee is empowered to find a person guilty of infamous conduct in any professional respect in respect of the allegations before it. – See S.10(1)(a). On this ground it may give any of the following applicable directions.

1. Order the Registrar to strike the name of such person off the roll, – See S.10(1)(c)(i).

2. Suspending the person so found guilty from engaging in legal practice, for such periods as may be specified in the direction.

3. Admonish the person.

Similar powers of punishment are exercisable in respect of persons convicted of criminal offence in Nigeria, which offence is in the opinion of the Committee incompatible with the status of a legal practitioner. – See S.10(1)(b), or where the name of any person is fraudulently enrolled.

However where the allegation establishes misconduct not amounting to infamous conduct, the penalty is limited to suspension or admonition. It may also include the refund of moneys paid or the handing Over of documents or any other valuable property consistent with the misconduct established.- See S.10(2).

Order the Registrar to strike the name of such person off the roll, – See S. 10(1)(c)(i).

B. Appeal Committee of the Body of Benchers

The Appeal Committee established under S.11(1) is “charged with the duty of hearing appeals from any direction given by the disciplinary committee” By virtue of S.11(3), “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 by the disciplinary committee”. It does not seem to me that this committee has any power of rehearing in the nature of taking fresh evidence and considering on its own the guilt of the appellant on such facts.

C. The Supreme Court

This is a reenactment of the inherent jurisdiction of the Court to strike off the roll any person guilty of infamous conduct in any professional capacity on the grounds prescribed in S.10(1) for which the Disciplinary Committee may give directions. It is not the exercise of an appellate jurisdiction of the Supreme Court. The Supreme Court can exercise this jurisdiction where

(a) there is a matter in which the Court or any other Court of Nigeria is or has been seized,

(b) the legal practitioner appears to the Supreme Court guilty of infamous conduct in any professional respect with respect to such matter.

(c) after hearing any representations made and evidence adduced by or on behalf of that person and such other persons as the Court considers appropriate. – See S.12(1).

Thus disciplinary proceedings may be initiated by the Legal Practitioners Committee in respect of misconduct which are ex facie the Court. In respect of such cases appeal lies to the Appeal Committee of the Body of Benchers. Secondly, the Supreme Court may exercise disciplinary powers in respect of misconduct which the Supreme Court or any other Court of Nigeria is seized. This analysis makes plausible the seductive proposition put forward by Chief Williams, that only the Supreme Court was envisaged in the meaning of “court or other tribunal” in section 33(1) of the Constitution 1979. However it is necessary after a careful analysis of their functions and application of the tests for identifying judicial functions in a statutory body to determine whether the expression “court or other tribunal” in section 33(1) of the Constitution applies to determinations made by the Legal Practitioners Disciplinary Committee.

Tests for determining whether function judicial or administrative It seems substantially clear from the express provisions of S.10(1) that the Disciplinary Committee is charged with the duty of considering and determining any case where allegations of misconduct against a legal practitioner amounting to infamous conduct have been brought to its notice. It is also empowered to impose penalties of striking off the roll of legal practitioners, suspension, and admonition. There is no doubt and it is settled law that a finding either way an the allegations before the Disciplinary Committee is a final determination on the issues before it. See SC.151/1984 Omonuwa v. Oshodin (Unreported 1/2/85). Counsel to the Appellant has submitted before us that the determinations of the Disciplinary Committee are not those of any “court or other tribunal” because the determinations are not final but are subject to appeal to a court of law or to another administrative tribunal. It was argued that where the functions conferred by statute setting it up enable it to make a final determination of the rights of the parties then it is a body subject to the provisions of section 33(1). The first category which Counsel termed an “administering authority” he argued is contemplated under section 33(2) of the Constitution. In his submission, a distinction which is vital ought to be drawn between the two bodies. Where “a court or tribunal” within section 33(1) envisages bodies whose statutory function is primarily judicial and must conform to all the standards and requirements of that sub-section of the section; those envisaged in sub-section (2) are those whose function is predominantly administrative in character, and need not conform to all the requirements in sub-section (1) in the discharge of their duties. In his contention it is sufficient if there is provision for an opportunity for the person affected by any such decision to make representation to it and if its decision are not final and conclusive. It was submitted that the Disciplinary Committee here is not “a court or other tribunal”, but an administering authority. Chief Williams compared the situation with that of a judicial officer framing a charge under the provisions of the Penal Code. He cited and relied upon Twist v. Randwick Municipal Council 136 C.L.R. 106, Wiseman v. Borneman (1971) AC.297, at p.308; Falomo v. Lagos State Public Service Commission (1977) 5 S.C.51; Attorney-General v. B.B.C. (1981) A.C. 308; Calvin v. Carr (1980) A.C.574, and several United States decisions.

Chief Fawehinmi, submitted that the Disciplinary Committee is a quasi-judicial tribunal and is therefore bound by the rules of natural justice enshrined in section 33(1). Counsel referred to sections 9, 10, and 11 of the enabling Legal Practitioners Decree, where the Committee was established, vested with adjudicatory functions and powers to inflict punishment. It was pointed out that the word direction in section 10 means a decision, and that a direction operates automatically subject to a statutory period of 28 days imposed by the Decree. This is the only distinction between the general judicial decision and a direction of the Committee. It was submitted that a tribunal of this nature is bound to observe the principles of natural justice.

It seems to me to follow naturally from the contention of Chief Williams, SAN, for the Appellants that the crux of the Appellants’ case is that the Legal Practitioners’ Disciplinary Committee is not a “court” or “tribunal” within the meaning of section 33(1) of the Constitution, 1979, and consequently not governed by the provisions of that section. It is therefore of primary importance in the determination of this appeal to determine that issue. A correct determination of the issue requires the answer to the question what is a “court or other tribunal” within the meaning of S.33(1) of the Constitution 1979.

“Court or Tribunal”

The judicial powers of the Federation is vested in the Supreme Court, Court of Appeal, the Federal High Court and States High Courts. These are Courts established for the Federation and enumerated in S.6(5)(a)(b)(c) of the Constitution. The judicial powers is also vested in such other courts as may be authorised by a law 10 exercise jurisdiction on matters in respect to which the National Assembly may make laws. The Legal 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 S.6(5)(a) of the Constitution.

It is relevant to mention that the words “court”, “tribunal” are not defined in the Constitution. The Law Miscellaneous Provisions Act, Cap 89 and the Interpretation Act 1964 have not defined the words either; indeed no kind of courts or tribunals have been defined. The definition sections of the High Court Laws which define “court” to “include the High Court and the Judges of the High Court sitting together or separately; or a magistrate court to mean a magistrate court established in an area under the Magistrates Court Law etc. adopted the same approach. S.2 of the Evidence Act Cap. 62 states “court” includes all Judges and Magistrates and except arbitrators all persons legally authorised to take evidence” The various meanings of the word “court” in Words and Phrases Legally Defined, Vol. 1 2nd Ed. at pp. 367-370, has made no improvement on the above. One of the definitions of the word “court” in the Pocket Oxford Dictionary, 6th Ed. At p. 187 is that “it is a body with judicial powers, tribunal….” It is with the institutional writers and judicial decisions that we find attempts at an exposition of what indeed a court or tribunal is. Even this definition is not quite helpful. The only definition which seems to be quoted is that of Coke on Littleton (58c), repeated by Blackstone in his Commentaries of the Laws of England Vol. iii p. 23. It is as follows-

“Curia, Court is a place where justice is judicially administered” Stricto sensu, this is a description of the place, howbeit cryptic, where justice is judicially administered, and not the concept of that place where justice is judicially administered. It is the last mentioned concept which several writers and judges have in several decisions grappled with doubtful success. The assumption in both Coke and Bracton and by Holdsworth in his History of F English Law 7th Ed. Vol. 1, p. 87, as it is true today, was that all courts derive their authority from the sovereign. In the circumstance of this country, the judicial power of the Constitution is vested in the institutions so declared in section 6 of the Constitution and already stated above. Thus the question whether statutory body can be described as possessing judicial powers is determinable by examining its functions in the light of the Constitution which has conferred such powers. – See Nafiu Rabiu v. Kana State (1980) 8/11 SC. 149.

The question whether the exercise of a power by a statutory body is judicial or administrative has been one of considerable difficulty. The exercise of judicial powers by a statutory body is determined largely by the nature of its functions. In Shell Co. of Australia v. Federal Commissioner of Taxation (1931) AC. at pp. 295,296 their Lordships of the Judicial Committee of the Privy Council cited with approval the definition of Judicial power by Griffiths, C.J. in Huddart, Parker & Co. v. Moorehead 8 C.L.R. 330, at p. 357, where the expression was defined as follows –

“I am of opinion that the word~ “judicial power” as used in S.71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the right relates to life, liberty or property. The exercise of this power does not begin until some tribunal which has some binding and authoritative decision (where subject to appeal or right) is called upon to take action,”

This definition clearly coincides with the provisions of section 6(a)(b) of the Constitution 1979. It seems to me obvious that judicial power in section 6 of the Constitution is for the purpose of section 33(1) vested in the courts or tribunals, or other statutory bodies exercising judicial functions under the Constitution. This is because the expression “court or tribunal” used in this section and in the sense in which it is used, are interchangeable. It is not used in the sense in which Lord Sankey used the word in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (supra) at p. 296, where “tribunals” were referred to as institutions with the trappings of a court” Accordingly in compliance with the provisions of section 33(1), a court or tribunal is any statutory body, which has powers to decide controversies, and give binding decisions is a court or tribunal within the section. According to this view the tests necessary for the determination whether a statutory body has judicial powers are

(1) whether it has before it a lis inter partes

(2) whether the decision of the statutory body is binding

(3) whether the decision is conclusive and final.

Lis inter partes or Justiciable issue

It is an essential prerequisite of the exercise of judicial power that there must be a dispute requiring determination; or as it is referred to lis inter partes or justiciable issue. In Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC. 134; 149, it was declared,

“The conception of the judicial function is inseparably bound up with the idea of a suit between parties”

A justiciable issue or lis inter partes undoubtedly arises in conflicts between individual parties, a party and the State, an individual and a public authority and an individual and a professional association. Hence when clearly it is a question of penalties and or a disqualification imposed on a professional man by his association, there is a very definite lis between accuser and accused. It is conceded that a lis is not an invariable indicia of a court or tribunal. This is because a coroner’s court has no lis inter partes before it. Hence though helpful, the test of lis inter partes is not an invariable distinction between a statutory body exercising judicial powers, and a body which exercises merely administrative powers.

In Everett v. Griffiths (1921) 1 AC. at p. 683, Atkinson L. J. used the expression “judicial act” as a distinction. In his view “a judicial act is an act done by competent authority upon consideration of facts and circumstances, imposing liabilities and affecting the rights of others.”

It is conceded that a judicial act may be performed by a body not vested with judicial powers, but exercising ministerial powers. Atkinson L.J’s view would seem to be applicable to the determination of almost any tribunal.

Binding decision

The other test is whether the decision is binding on the parties. The bindingness of the determinations of the statutory body without the need for confirmation or adoption by any other authority is one of the essential characteristics of the exercise of judicial power. Thus where the determination is binding, it is immaterial that it is subject to confirmation by another body. It is still an exercise of judicial power. It is conceded that there the order of an administrative body is made binding by statute, this per se, will not clothe such powers with judicial quality. It is therefore not an invariable characteristic of a judicial power.

Conclusiveness

Conclusiveness of the determination is another characteristic of the exercise of judicial power. The provision of channels of appeal to another body from its determination does not divest the determination of its conclusive nature and the statutory body of its judicial character. One of the characteristic qualities of a judicial proceeding is that it terminates in a binding and conclusive decision until reversed on appeal. 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 established principles of law. Thus a court, tribunal or statutory body exercising judicial powers must act in a judicial capacity, when after investigation 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. It is too well settled to reiterate the judicial function that interpreting, declaring and applying the law are its accepted hall marks. – See Moses v. Barker (1896) AC. 245 and United Engineering Workers’ Union v. Devanayagam (1968) AC. 356.

Notwithstanding what has been stated above, in sum judicial acts may be identified by their procedural or substantive quality alone or by any combination of all the above. Hence where these characteristics are a feature of the exercise of statutory power, there is no doubt that such exercise of power must be subject to the observance of the rules of natural justice. – See Cooper v. Wandeworth District Board of Works (1863) 14 CB. (p.3) 180, Delta Properties Pty. Ltd. v. Brisbane City Council 95 C.L.R. 111. See also the judgment of Mason J. at p. 113 in Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106.

On the other hand when a statutory body is vested with powers other than judicial, which invariably is administrative or ministerial, this is not a court or tribunal within s.33(1). Generally, there is no lis inter partes in the exercise of purely administrative powers which are usually in the nature of investigatory, advisory, deliberative or conciliation. Again, the powers exercised do not have legal effect until confirmed by another body. In many cases they are known to have the powers of making a preliminary decisions. – See Jaya Wardene v. Silva (1970) 1WLR. 1365. They are not recognised to affect the rights of persons. In Dewkins v. Lord Rokeby (1873) L.R. 8 QB. 265, at p. 266 Kelly C.B., said,

“A court of inquiry, though not a court of record, nor a court of law, nor coming within the ordinary definition of a court of justice is nevertheless a court duly and legally constituted and recognised in the Articles of War and many Acts of Parliament”

See also R. v. Coleshill Justices, Ex parte Davies & anor. (1971) 3 All ER. 929 where Committal orders by justices was quashed on the ground that it was made without consideration of the evidence. There is a clear distinction between the exercise of judicial powers and of administrative powers. The characteristics of bindingness, finality and lis inter partes of the exercise of a judicial power are clearly absent in the exercise of a judicial power are clearly absent in the exercise of an administrative power.

Chief Williams has in his contention relied on the Privy Council decision in Wiseman v. Borneman (1971) AC. 297, to submit that the function of the Appellant Committee, like that of the Tax Authority is merely one of an administering authority who has no final and conclusive determination in respect of the rights in issue. I do not propose to discuss the facts of the Wise-man case in detail. Suffice it to say that the Tribunal in that case has two functions, neither of which is administrative (1) to hear under section 28(4) of the Finance Act 1960 whether a prima facie case had been established. It was for the tribunal under s.28(6) to hear appeals from the Special Commissioners. In the Wiseman case there was sufficient opportunity for the appellant to state his case to the tribunal. The tribunal had with it sufficient documents on which it was entitled to rely to come to its decision whether there was not a prima facie case for proceeding with the matter. The taxpayer, in this case appellant, still has an opportunity of being heard after the tribunal is satisfied that a prima facie case has been made out against him. There is a right to be heard on appeal to the Special Commissioners, a further right of appeal by way of rehearing to the tribunal, and a right of appeal to the High Court by way of case stated on a point of law. – (See S.23(6)(7) and (8)

It was held that on the construction of section 28 of the Finance Act 1960, there was sufficient opportunity for the taxpayer to state his case to the tribunal and the tribunal was entitled to make its determination on the documents specified for the purpose. There was nothing unfair and it is not against the principles of natural justice.

The view that the Commissioners of Taxes in the United Kingdom said, at p. 385

“I think the estimating authorities, even when an appeal is made to them, are not acting as judges deciding litigation between the subject and the crown. They are merely in the position of valuers whose proceedings are regulated by statute to enable them to make an estimate of the income of die taxpayer for the particular year in question. The nature of the legislation for the imposition of taxes making it necessary that the statute should provide for some machinery whereby the taxable income is ascertained, that machinery is set going separately for each year of tax, and though the figure determined in one year is final for that year, it is not final for any other purpose. It is final not as a judgment inter partes but as the final estimate of the statutory estimating body. No lis comes into existence until there has been a final estimate of the income which determines the tax payable. There can be no lis until the rights and duties are ascertained and thereafter questioned by litigation.”

This in my opinion accurately describes the nature of the duties of tax commissioners. This being the nature of their duties, they cannot exercise judicial powers. – See also Ranaweera v. Wickramasinghe (1970) AC. 951; Ranaweera v. Ramachandran (1970) AC. 963.

The differences between the appeal in hand and the tax cases is sufficiently egregrious from our analysis of the functions of the Appellant Committee. Whereas the role of the tax commissioners

in their assessment of tax liability does not create any lis, the directions of the Appellant Committee after considering and determining the allegations of professional misconduct if questioned by respondent will undoubtedly result in a lis.

Chief Williams, S.A.N., in construing the functions of the Legal Practitioners Disciplinary Committee has submitted that it is merely an administering authority governed by the provisions of section 3(2) of the Constitution. In his view Appellant Committee has “power to determine question ….. that affect or may affect the civil rights and obligations of any person”, but has no power to make a determination which will be “final and conclusive” In any case opportunity must be given to the person whose rights and obligations are affected to make representations to it.

Before discussing the contention of Appellants it is important for a clear understanding of the nature of the case and the remedy relied upon by the respondent. At the risk of tedious repetition, I reiterate that this is an application for an order of prohibition brought under S.1(2) of the Fundamental Human Rights (Enforcement) Rules 1979, pursuant to the provisions of section 42 of the Constitution 1979.

Section 42(1) provides,

“(1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress”

Sub-section (2) of the same section provides the nature of the remedy as follows –

(“2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.”

The rules made under sub-section (3) also provide for the application for the writs of Prohibition, Certiorari, Mandamus etc. under Order 1 r.2(1), and Order 6 of the Fundamental Rights (Enforcement Procedure) Rules. Both grounds upon which the application were brought relate to the overriding protection of fair hearing entrenched in section 33(1). In this case the twin essentials of the observance of the rules of natural justice have been invoked to prohibit Appellant Committee from hearing the allegations of professional misconduct against him. Those are

(1) That the Appellant Committee cannot be both Prosecutor and the Judge.

(2) That there was a likelihood of bias arising from the composition of the Appellant Committee.

It is pertinent to observe that the respondent has sought the remedy by prohibition. His complaint is not that his fundamental right has been violated, but that it was being or was likely to be contravened. There is no doubt the provisions of S.42(1) of the Constitution provides a remedy in such a situation. In their book, Practice of the Crown (1908) 2nd Ed. p. 252, Short & Mellor wrote,

“The Writ of Prohibition is a judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court from usurping a jurisdiction with which it is not legally vested, or in other words, to compel courts entrusted with judicial duties to keep within their limits”

This passage was cited with approval in In re Clifford and O’Sullivan (1921) 2 A.C. 570 at p. 582, where it was stated that the writ only applies to bodies exercising judicial functions, but does not lie to bodies charged with the duty of inquiring and advising.

It is clear that the Appellant Committee is vested with the exercise of functions which affects the rights and obligations of the respondent. It is the duty of the superior courts to supervise the correct exercise of these functions. There is considerable judicial support for this proposition. In Reg. v. Local Government Board (1882) 2 QBD. 309, 321, Brett U., said,

“Whenever the Legislature entrusts to any body of persons other than to superior courts the power of imposing an obligation upon individuals, the courts ought to exercise as widely as they can the powers of controlling these bodies of persons if those persons admittedly attempt to exercise powers given to them by Act of Parliament.”

The duties of the Appellant Committee as prescribed in S.10(1) of the Legal Practitioners Decree No. 15 of 1975, is 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 impose such punishments as to order that the name of the respondent be struck off the roll, or impose a penalty of suspension, or merely admonish. This is the exercise of a judicial power. See A. G. of the Gambia v. Njie (1961) 2 All ER. 505 at p. 510. Chief Williams further contended before us that the Appellant Committee is merely an administering body because the punishments which the Committee is empowered to impose do not take effect until after the expiration of the time limited for appealing against its determination. A directive does not take effect until it is known that the person affected does not wish to appeal against it or that the appeal, if any, has been abandoned or dismissed by the Appeal Committee of the Body of Benchers. It was then argued that the application was premature. This seems to me a clear misunderstanding of the characteristics of the exercise of judicial power. The provisions of sections 9, 10 of the Legal Practitioners Decree 1975, combines in the Appellant Committee, the twin functions of Investigating Panel and Disciplinary Tribunal hitherto discharged by two separate bodies in the repealed Legal Practitioners Act 1962. Under the Legal Practitioners Act 1962, the Legal Practitioners Investigation Panel established under section 6(3) was charged with the duty of conducting a preliminary investigation into allegations of misconduct referred to it with the duty of considering and determining whether a prima facie case has been made out. The Legal Practitioners’ Disciplinary Tribunal established under section 7 was vested with the power of trial and punishment where it was satisfied that the allegations are established. Under the current Legal Practitioners Decree 1975 the powers of investigating and trial are by the provisions of section 9 vested in the Appellant Committee. It therefore cannot be truly or correctly said, as is being suggested, that the Appellant Committee has no power to make a determination which will be final and conclusive. It is the Appellant Committee which plays the role of an investigating panel and a Disciplinary Tribunal. It determines guilt and imposes the appropriate punishment. The position of the Appeal Committee of the Body of Benchers is merely to consider the Appeal against the direction of the Appellant Committee. Even where the decision of a body is subject to confirmation or approval by another body, the Judicial Committee of the Privy Council in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust (1937) AC. 898 at p. 917, has held that it is nonetheless a judicial proceeding.

Chief Williams, S.A.N. has relied on the Australian decision of Twist v. Randwick Municipal Council 136 C.L.R. 106 for his contention. This was a case decided under section 317 of the Local Government Act of New South Wales which empowered a Muncipal Council to order the owner of a dilapidated building to demolish it within a reasonable time fixed by the Order. The Council is also empowered to do the demolition itself where the owner fails to do so. The owner has a right of appeal to the District Court against the making of the demolition Order. Counsel relied on the view expressed in this case that since a provision was made for appeal, the legislature has provided for the opportunity of the owner to be heard before the Order of the Court affecting his rights are finally made.

There is a clear distinction between the making of a binding determination as in the case before us, and the exercise of a right of appeal. There is also the difference between a provisional decision which is subject to further proceedings and examination of the first order before another body. Whereas the first case represents the appeal before us, the second case is the situation in Twist v. Randwick Municipal Council (supra). Twist’s case was decided on the construction of the provisions of S,317B of the Local Government Act of New South Wales. It was there said, at p. 111,

“…….the appeal to the District Council calls in my opinion, for an examination of the facts and for the exercise of a primary discretion whether or not an order for demolition should be made…. Thus the District Court must be satisfied by evidence duly given before it that the state of the building satisfies the prescription of the section. It must decide upon its own view of the actual facts”

There is therefore in this situation a rehearing, and the power of the appellate court to “decide upon its own view of the facts” It is important to state that on the facts of Twist’s case, the appeal was lost essentially on the ground that it was made out of time, and an application for extension of time to appeal to the District Court was refused. Again, the decision was based on the construction of 317B of the Local Government Act 1919 of New South Wales. The Court accepted the validity of the proposition that,

“The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: See Cooper v. Wandswath Board of Works (1863) 14 C.G. (N.S.) 180 (143 E.R. 414) R. v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. (1924) 1 KB. 171 at p. 205”

It however went on to hold at p. 109

“But the Legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear.”

It was possible under Australian law for the right to be removed by an unambiguous legislative provision. This is the construction counsel to the appellant has placed on the provisions of section 33(2) of the Constitution. With respect, section 33(2) 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 decision is made. It does not apply to the exercise of judicial powers which are final and conclusive. In the circumstances of this country S.33 is an entrenched provision of the Constitution which cannot be displaced by legislation however unambiguously worded.

Chief Williams in his argument laid considerable stress on the power of hearing and subsequent representation to another body. This view appears to miss the point and ignores the object and the reasons for applying for a writ of prohibition. It is well settled that the writ of Prohibition is resorted to restrain either the commencement or continuance of an action in the statutory body exercising judicial powers. See Reg. v. Local Government Board (1882) 2 QBD. 309. 1t is not available where the wrong complained of has been completed. In Byerley v. Windus (1826) 5 B & C. 1, 121, Bayley J. said,

“But when once it appears by the proceedings in the spiritual court, that the prescription instead of being admitted, is disputed, and that the parties are in progress to bring its existence to trial, the Courts of Common law are not bound to wait till the parties have incurred the expense of putting it in issue, but the prohibition is grantable at once; and it was upon this principle that the prohibitions were granted in Darby v. Consens (1787) 1 T.R. 552; and in French v. Trask (1908) 10 East 348″

That the writ of Prohibition can issue even before hearing is supported on the grounds that the writ issues to restrain excess of jurisdiction. In re Crossby Tithes 13 Q.B. 761, the writ of Prohibition was granted even before the Assistant Commissioner had drafted his award, although he had indicated his intention to do so. His award if eventually drafted was subject to objection and to an amendment after hearing objections and subject to confirmation y the Commissioners.

In Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Company (1920) Ltd. & ors. (1924) 1 KB. 171, The Electricity Commissioners is a statutory body established under section 1 of the Electricity (Supply) Act 1919. The body was empowered to constitute provisionally separate electricity Districts, and also to formulate schemes for improving in the existing organisations for the supply of electricity in any electricity district so constituted. They were directed to hold local enquiries upon the schemes. A scheme provides for the incorporation of a joint electricity authority representative of authorized undertakers within the Electricity District. By S.6(2) of the Act, the Authority was authorised to delegate with or without restriction to its Committee any of its powers or duties. Section 7(1) empowered the Commissioners to make an order giving effect to a scheme embodying the decisions they arrive at after holding a local inquiry, ‘r” and present the order for confirmation by the Minister of Transport. By s.7(2) the Order shall after confirmation be laid before each House of Parliament and is not to come into operation until approved, with or without modification by a resolution passed by each House, and when so approved is to have effect as if enacted in the Act of 1919.

Pursuant to these enabling provisions the Commissioners constituted an electricity district and formulated a scheme providing for the incorporation of a joint electricity authority which purported to be representative of the authorised undertakers, both local authorities and electricity companies in the district so constituted. It was provided in the scheme that at its first meeting, the joint authority should appoint two committees, namely a local authority committee and a company committee, and definite and separate portions of the Electricity District should be assigned to each. Also each committee should be delegated separate powers and duties in respect of the District assigned. The Commissioners in accordance with the Act began to hold a local inquiry with a view to making an order embodying the scheme. Some of the companies affected by the proposed scheme applied for writs of Prohibition and Certiorari on the grounds that the scheme was ultra vires in so far as it has compelled the joint authority to appoint the two committees and delegate to them powers and duties of the joint authority contrary to the provisions of the Electricity (Supply) Act 1919 and 1922.

The objection to the application, as in this appeal, was that the application was premature since the matter was still in the preparatory stage. It was submitted that the Order made by the Commissioners has no force or effect until approved by Parliament. Hence any application to Court before such approval is premature or too late depending whether it is a prohibition or certiorari.

In his judgment granting the application, allowing the appeal and reversing the judgment of the Divisional Court, Bankes L.J., after citing several authorities, said at 198,

“The conclusion I have come to in reference to the whole matter is that there is abundant precedent for the Court taking action at the present stage of the proceedings of the Electricity Commissioners, provided it is satisfied that the Commissioners are proceeding judicially in making their report, even though that report needs the confirmation of the Minister of Transport and of both Houses of Parliament before it becomes effective”

On his part Atkin L.J., referred to the objection that Prohibition will not lie because the Commissioners had come to no decision, since their decision was subject to the approval of Parliament, and that they act merely as advisers, said at p. 205,

“It is to be noted that it is the order of the Commissioners that eventually takes effect; neither the Minister of Transport who confirms, nor the Houses of Parliament who approve, can under the statute make an order which in respect of the matters in question has any operation. I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. The authorities are to the contrary”

It was in his connection that Atkin L. J. formulated the often cited dictum generally applied in determining the applicability of the writ of prohibition to restrain the exercise of judicial powers. He said, at p. 205,

“Wherever any body of persons having legal authority to determine duty to act judicially, act in excess of their legal authority. They are subject to the controlling jurisdiction of the Kings Bench

Division exercised in these writs”

The cases of Le Comple & ors. v. Belgium (1981) 4 EHRR I cited by Chief Fawehinmi in support of his contention reflects the view of the European Court of Human Rights with respect to the application of Article 6(1) of the Convention on Human Rights which is similar to the provisions of our S.33(1) to the jurisdiction of professional bodies determining allegations of professional misconduct. It is pertinent to mention that the overriding consideration in all these cases is the existence of a power in the statutory body to decide rights between parties and doing so or purporting to do so in excess of such powers. There is no doubt that the Appellant Committee is a court or tribunal within the context section of 33(1) of the Constitution. In this appeal the writ is against a threatened violation of his rights and properly lies. It seems to me obvious that in a case of this nature the writ of Prohibition should be available where the Appellant Committee is entrusted with the duty of determining the right of the respondent. The question then arises whether the provisions of section 33(1) of the Constitution is applicable to the facts of this case? Application of 5.33(1) and the Rules of Natural Justice Section 33 of the Constitution 1979 provides as follows –

“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair bearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person;

(b) contains no provision making the determination of the administering authority final and conclusive”

I accept partially the construction placed on this section by Counsel to the appellant, that the provision is to guarantee fair hearing in the determination of the civil rights and obligations within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality. The operative phrase in respect of this part of the section are “a court or tribunal” established by law, and constituted in such manner, as to secure its independence and impartiality. This phrase clearly embodies the two grounds on which the application for Prohibition have been brought.

The words “fair hearing” in section 33 of the Constitution 1979 has been employed to express all the requirements of common law for the observation of the rules natural justice in the determination of the civil rights and obligations of the citizen. Although it is the common law concept that is in consideration, the scope and extent of the concept should be determined within the context of the section of the Constitution in which it has been incorporated in the light of the provisions of the Constitution as a whole. Section 33 in an entrenched provision, which has the privilege of nullifying any other provisions of the Constitution or any other legislation inconsistent with it. It has the distinction of being subject to amendment only after compliance with the provisions for doing so in the Constitution. It therefore stands solidly behind the citizen who is legitimately apprehensive that in the determination of his civil rights and obligations, there was a likelihood that his right to natural justice might be denied him. Although the phrase “natural justice”, has been described as sadly lacking in precision, see Local Government Board v. Arlidge (1915) AC. at p. 130 and has been said to mean different similar things in slightly different circumstances, see Russel v Duke of Norfolk (1949) 1 ALL ER. 109. Two concepts have survived in modem times to epitomise the expression. These are that

1. No man shall be judge in his own cause.

2. Both sides shall be heard.

These two principles which can hardly be separated in neat watertight compartments and are in some cases inextricably mixed, govern the concept of natural justice both in its procedural and substantive aspects. In considering the context of section 33 one must necessarily fall back on the common law and judicial decisions to determine what is “fair hearing”

Before entering into analysis of the issue in this appeal, it is relevant to state that the provisions of section 33(1) of the Constitution may be infringed

(i) By a law which contains provisions which are inconsistent with any of its provisions.

(ii) By a court or tribunal which denies the citizen the rights provided therein.

(iii) By a tribunal duly constituted pursuant to the provisions of a law validly enacted but adopting a procedure which falls short of the “fair hearing” requirements of the subsection …

The observance of the principles of natural justice which is the bulwark of the protection for fair hearing is infringed in our adversary procedure where the complainant is also the judge in the same cause. Thus where the prosecutor and the judge in the cause are the same persons, there can be no fair hearing and the rules of natural justice would seem to have been violated. This rule of natural justice was applied in City of London v. Wood 1701 12 Mod. 669 at p. 687, where Holt C.J. Said,

“It is against all laws that the same person should be party and judge in the same cause, for it is manifest contradiction; for the party is he that complains to the judge and the judge is to hear the party; the party endeavours to have his will, the judge determines against the will of the party and has authority to enforce him to obey his sentence; and can any man act against his will or enforce himself to obey”.

It is an essential attribute of the administration of justice that justice must not only be done, but it must be manifestly seen to be done. As was stated very lucidly in R. v. Sussex Justices Ex parte Macarthy (1924) 1 KB. 256 at p.259 by Hewart C.J.,

“…it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”

This principle has been restated with added emphasis by Denning L.J., M.R., in Metropolitan Properties Co. (FCC) Ltd v. Lannon (1969) 1 QB.577. The reason given is this,

“The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: “The Judge was biased”

The reason given by Lord Denning M.R. here is identical with that given by Lush J. in Serjeant v. Dale (1977) 206.558,567, where he said,

“The law in laying dawn this strict rule, has regard to bias the judge as to the susceptibilities of the litigant parties. One important object at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security”

Hence where there is a likelihood, or appearance that justice in the view of the ordinary person, is not likely to be done either from the nature of the composition of the court or tribunal, or from the procedure adopted, then the rules of natural justice have been violated.

Application to the facts of this case

I now turn to the grounds relied upon for the Prohibition. First, that the Attorney-General in his position as chairman of the Appellant Committee is both the complainant, prosecutor and chief judge, and therefore violates respondent’s right to fair hearing as entrenched in S.33(1). Counsel to the Appellant concedes that if the Appellant Committee is held to be qualified as “a court or tribunal constituted in such a manner as to secure its independence and impartiality,” then the appeal of the Appellant fails. It is their contention that it is not. Having held that it is, it is merely of interest to consider the other contentions of the Appellant. The Legal Practitioners Disciplinary Committee has the Attorney-General of the Federation named as its statutory Chairman. It also has three members of the National Executive Committee as its members. These three members participated in the meeting of the National Executive Committee which referred the complaint to the Hon. Attorney-General, and expressed strong views of disapproval of the conduct of the respondent in the complaint.

The complaint against the respondent was laid before the Disciplinary Committee by an officer in the Ministry of Justice acting on behalf of the Attorney-General. The letter of complaint inviting the respondent to appear before the Disciplinary Committee was written by an officer of the Ministry of Justice directed by the Attorney-General. – See Exhibit “C”. It is not disputed that the charges were laid at the instance of the Ministry of Justice and was directed by the Hon. Attorney-General who is the Chairman of the Disciplinary Committee. This is a situation where he is both the complainant, prosecutor and the chairman of the body empowered to consider and determine whether on the allegations against him, the respondent is guilty of infamous conduct in a professional respect.

Chief Williams SAN, has argued that since the Disciplinary Committee was an administering authority lacking powers to determine the guilt of the allegations, there was no violation of the provisions of section 33(1). He relied on the United States decisions of Harold Withrow et al etc. v. Duane Larkin 425 U.S.35, 43 L. Ed. 2nd 723, 95 S,ct. 1456; Marshall v. Jericho Inc. 64 L.Ed. 2nd. 182. He also cited and relied on Calvin v. Carr. (1980) A.C. 574,592. The proposition relied upon in these cases is that a combination of investigative and adjudicative functions in the same body does not result in a violation of procedural due process, or in our context a violation of the right to fair hearing. In Harold Withrow et all, etc. v. Duane Larkin, Appellant was at all times material to this case resident in Michigan, and was licensed to practice Medicine under a Wisconsin Statute. His practice was that of performing abortions. The Board of Medicine sent him a notice of investigation that he was engaged in certain proscribed practice. The hearing would be closed to the public. The Board was entitled, if Appellant was found guilty of the allegations, to revoke his licence. Appellant moved to dismiss the complaint on the ground that the procedure was unconstitutional. The Supreme Court held that the procedure whereby the Board both investigated and adjudicated the appellant’s case did not violate due process. The court observed

“The initial charge or determination of probable cause and the ultimate adjudication have different bases and purposes. The fact that the same agency makes them in tandem and that they relate to the same issues does not result in a procedural due process violation. Clearly if the initial view of the facts based on the evidence derived from non-adversarial processes as a practice of or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised. But in our view that is not this case”

The Court did not ignore the fact that there might be situations where a combination of investigative and adjudicative functions in the same body may lead to procedural due process violation, and observed, that each case ought to be decided on its own special facts. They declared, at p.730 “That the combination of investigative and adjudicative functions does not, without more, constitute a due process violation, does not of course, preclude a Court from determining from the special facts and circumstances present in the case before it, that the risk of unfairness is intolerably high. Findings of that kind made by Judges with special insights into local realities are entitled to respect.”

The appeal before us is clearly not such a case. Here it is not only merely one of investigation and adjudication. It is a case where the prosecutor is also the Judge. Besides, this is not the case of an investigation and adjudication by an administrative agency, it is a prosecution and adjudication by a body with judicial powers. As was suggested in Rusell v. Duke of Norfolk & ors. (1949) 1 All E.R. 100 at p.118 per Tecker L. J.

“The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth.”

In Marshall v. Jericho, (supra) which concerned entirely on Administrative Agency, without judicial powers, namely the Employments Standards Agency, it was held that the allocation of fines levied on the employment of child labor on the recommendation of Assistant Regional Administrators and subsequently to its regional offices did not constitute any violation of procedural fairness embodies in the Due Process Clause. There is nothing to show that the Assistant Regional Administrator on whose recommendations the fines were levied exercised judicial powers. Besides, Appellant did not seek a judicial review of the decision of the Administrative Law Judge, but only challenged the civil penalty provisions of the Fair Labor Standards Act as unconstitutional, a declaratory and injunctive relief against their continued enforcement. This appeal is quite different both on the facts and the law applicable.

It is well settled that a person cannot be a judge in his own cause. This is a principle of natural law of considerable antiquity. The institutional writers tell us that the rule was stated in the Justinion’s Institutes Book 4, title 5, Law 1, and several cases quoting the principle abound in the Year Books.

One of the earliest cases, Earl of Derby’s case (1613) 12 Co. Rep. 114, which quoted the case of the Lord of the Marches of Wales (1409) Y.B. 11 Hen. 4, 27 also relied on the principles. In Day v. Savadge(1614) Hobart 85, it was regarded so fundamental and indispensable to the administration of justice that it was’ said,

“even an act of Parliament made against natural equity as to make a man a judge in his own cause, is void in itself; for jura naturae sunt immutabilia and they are leges legum”.

The proposition seems to me clear, unequivocal and incontestable that the person to decide the rights and obligations of two contending parties should not himself be a party to the lis. Where the Judge is also a party to the lis as a complainant he violates the sacred maxim of nemo judex in causa sua

In the Cause Celebre of Dimes v. Grand Junction Canal (1852) 3 H.L. Cas. 759, Lord Campbell C.J., said, at p. 793,

“No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but it is of the last importance that the maxim that no man is to be judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest”

This principle has been stated with consummate clarity by Griffiths C. J., in the Australian case of Dickason v Edwards (1910) 10 C.L.R. at p. 252, as follows-

“I think it is clear that in as much as the District Chief Ranger is a member of both these committees, and is head of the District Executive, and as a charge may be brought by the District Executive against a member, it was not intended that he should be disqualified merely by the fact that he is formally a party to a charge brought against a member. But if he is not merely a formal party but is in substance an individual complaining of an offence against himself, then, I think very different considerations apply. Then it becomes his own cause, not in a technical sense, but substantially. He is a person complaining of a grievance. Is he a person who ought to be allowed to try the alleged offender?”

After discussing the capacity in which the charge was brought against the appellant, the learned Chief Justice offered the answer as follows-

“It is said the District Chief Ranger did not take part in the proceedings. I am willing to give the fullest credit to that, but I do not think it is material. He was a member of the Tribunal that tried the case; he was present when it was heard, and applying the ordinary rules, I cannot say that his being there did not vitiate the proceedings altogether”

The cases of Wong Reun Cheuck v. The Medical Council of Hong Kong & The Attorney-General (1964) H.K.L.R. 47; Leeson v. General Council of Medical Education & Registration (1890) 43 Ch.D.366, Dr. Denloye v. Medical and Dental Practitioners Committee (1968) 1 All NLR. 306 were cited and relied upon by Chief Gani Fawehinmi in support of the proposition. Applying the facts of this appeal to this proposition, it seems reasonable to assume that although the Honourable Attorney-General was both the Prosecutor and the Chairman of the Disciplinary Committee, he assumes those positions in both cases, in his official capacities. In the first case he is a prosecutor in a nominal but official capacity; in the second case, he is the Chairman of the adjucating body not merely in a technical sense, in an actual judicial capacity. It is therefore difficult in the circumstances of this case to assume that the risk of unfairness is not so intolerably high as to presume that he can convincingly insulate himself from the prejudice attendant thereto as to preclude the inference that he was being a judge in his own cause. I do not think it is safe to assume that the Attorney-General can prosecute in the Court in which he is the Judge and still satisfy the principles of natural justice and without violating the provisions of S.33(1). All the judicial authorities are against that view. I am therefore satisfied that the Courts below were right in holding that the Hon. Attorney-General was a prosecutor, and Judge in this cause.

I now turn to the second reason which is that “the Constitution of the Appellant Committee is such as to create a likelihood of bias by reason of the position of the Attorney-General of the Federation”

It is essential to clarify at the onset that the writ of prohibition is to restrain appellants from “considering and determining” the allegations against the respondent. No actual bias is alleged. The allegation is that there is on the facts a likelihood of bias. It has not been denied that the Attorney-General is the Chairman of the Appellant Committee, vested with judicial powers to consider and determine whether the allegations of professional misconduct against the respondent has been established and to impose the punishments prescribed. There is also evidence that the prosecution of the respondent was in the name and on behalf of the Hon. Attorney-General. Furthermore, there is evidence, which is admitted that there are three members of the National Executive Committee of the Nigeria Bar Association, who held strong views on the case against the respondent, expressed such views during the deliberation on the issue in the National Executive Committee meeting of the Nigeria Bar Association and are now members of the Disciplinary Committee for the purpose of determining the guilt vel non of the respondent and to impose punishment. It is well settled that whether one of the Judges or all of them has also been an accuser is one of fact. In Leeson v. General Council of Medical Education (1889) 43 Ch.D. 366 at p. 334, Bowen L.J., said,

“It must be in all cases a question of substance and of fact whether one of the Judges has in truth also been an accuser. The question which has to be answered by the tribunal which has to decide, the legal tribunal before which the controversy is waged, must be: “Has the Judge whose impartiality is impugned taken any part whatever in the prosecution either by himself or his agents.”

To disqualify members of the Appellant Committee on the ground of bias it is necessary to show a real likelihood of bias. This must appear not only from the materials ascertained by the party complaining, but from such other facts as he might readily have ascertained and verified.

In R v. Rand (1866) L.R.10. Q.B. 230 Blackburn J. said,

“Wherever there is a real”likelihood that the Judge, would, from kindred or any other case, have a bias in favour of one of the parties, it would be very wrong in him to act: and we are not to be understood to say that where there is a real bias of this sort, this Court would not interfere”

The proposition was expressed more forcefully with his characteristic lucidity by Lord Esher M.R. in Allinson v. General Council of Medical Education and Registration (1894) 1 QB.750 at p. 758, as follows-

“The question is not whether in fact he was or was not biased. The Court cannot inquire into that. There is something between the two propositions. In the administration of justice whether by a recognized legal court or by persons, who although not a legal public Court, are acting in similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased.

To use the language of Mellor J. in Reg. v. Allan 4 B & 5, 915 at p. 926. “It is highly desirable that justice should be administered by persons who cannot be suspected of improper motives”

A number of cases to which we were referred were those where the cases went to trial. In Oyelade v. Araoye (1968) NMLR. at pp. 46, the Court found that Mr. Cruddas had made up his mind as to the outcome of the inquiry and that unless there was fresh evidence the inquiry was purely formal. It was also held that Mr. Enahoro was not conscious of any bias or improper influence. Alakija v. Medical Disciplinary Committee (1959) 4 FSC. 38, 39 also a contested lis where the likelihood of bias was on the ground that the Registrar who is not a member of the Disciplinary Committee remained with the Committee during their deliberations and considerations of their decision. It was not clear whether he took part, but his mere presence offended against the principle that justice must not only be done but it must be seen to have been manifestly done. Denlaye v. Medical and Dental Practitioners Committee (1968) 1 All NLR., 306, was not decided on the issue of bias which was not even raised or discussed in the judgment. More relevantly, one of the points on which the case was decided was on the application of the principle of audi alteram partem to preliminary investigation.

The dictum of Denning L.J. M.R. in Metropolitan Properties Co. (FGC) Ltd v. Lannon (supra), which seems to me a very helpful paraphrase and amplification of Lord Esher M.R. in Allinson v. General Council for Medical Education & Registration (supra), deserves to be quoted in extenso. It is as follows –

“….in considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the Chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did favour one side unfairly at the expense of the other. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking:

“The Judge was biased”

This decision was cited with approval in Deduwa v. Okorodudu (1976) 1 NMLR.236. See also Mohammed v. Kano. N.A. (1968) 1 All NLR. 424 at p.426, per Ademola C.J.N. It is not open to any doubt that on the facts of 380 Nigerian Weekly Law Reports 11 Nov. 1985 (Karibi. Whyte,’ JSC) this case right-minded people knowing that the Attorney-General who invited the respondent to appear before the Appellant Committee is also the complainant and prosecutor through the officers in his Ministry; and is the Chairman of the Appellant Committee, will find it increasingly difficult to persuade themselves that he would be impartial in the determination of the allegations against the respondent. Again, the three members of the Nigeria Bar Association who had expressed strong disapproval of the conduct of the respondent during discussion at the meeting of the National Executive Committee of the Nigeria Bar Association in Calabar where the matter was referred to the Attorney-General for action are also members of the Appellant Committee for the determination of the guilt of the respondent. This is not in my opinion the kind of mere prejudice considered in Maclean v. The Workers’ Union (1929) 1 Ch. 602, resulting from previous quarrel which did pot disqualify. It is not easy to convince any fair minded person that the Appellant Committee as constituted can behave differently. It is however conceded that if the only function of this Appellant Committee was merely investigative and judicial, the risk of impartiality from bias is not so high, since the same persons arc not also the accusers as in this case. It is not unknown, and is not unusual that the same body combine in its investigative and adjudicative functions. It does not necessarily create any risk of bias. In our own criminal procedure, which is adversary, the trial magistrate is empowered to proceed to trial after holding that no prima facie case has been made against the accused. See S.325, 326, 332, Criminal Procedure Act, Cap. 43. The first part of the proceedings in such a situation is merely investigative, the trial and conviction being adjudicative. Again, criminal prosecution under the Penal Code is commenced by a first information report filed before the Magistrate. It is after he has satisfied himself that an offence is established that he frames the charge or charges on which the accused is to be charged by the same Magistrate. This is undoubtedly a combination of investigative and adjudicative functions. See Sections 155 – 160, Criminal Procedure Code. But in neither situation is the trial Magistrate the prosecutor. It seems to me obvious that where the reasons for challenging the panel of adjudicators is that they are also the prosecutors, the risk of bias cannot be placed higher than as was pointed out in City of London v. Wood (supra) that the same man who by complaining endeavours to have his will, and as judge “determines against the will of the party and has authority to enforce him to obey his sentence…” He then asked the pertinent question”, .. and can any man act against his will or enforce himself to obey?” Obviously in this circumstance, I think not. See also Obadara & ors. v. Commissioner of Police (1967) NMLR. 39. I think it is not possible to credit the Attorney-General and the three members of the National Executive Committee of the Nigeria Bar Association, who are also members of the Appellant Committee, with the presumption of honesty and integrity in those serving as adjudicators. The immense risk in their participating both as accusers and judges does not lie merely on the fact that they had earlier entertained the views credited to them, which alone is sufficient. – See R. v. Kent Police Authority & Ors. Ex parte Godden (1971) 2 QB. 662. But that they are very likely to rely on their own impressions and personal knowledge, which were not subject to sorutiny by any other body. The risk of bias is intolerably high also because the members would be so psychologically controlled by their complaints that they would consciously or unconsciously avoid the appearance of having erred or altered the position. Justice in such circumstance would not be manifestly seen to be done. Thus there is no doubt that the respondent was not likely to have a fair hearing from the Legal Practitioners Disciplinary Committee as constituted whose independence and impartiality were doubtful.

The Disciplinary Committee Regarded as an Administering Authority. For the sake of completeness, I refer to the contention that the Appellant Committee being an administering authority under S.33(2) is not bound to satisfy the requirements of natural justice under S.33(1). It is a well settled principle that the rules of natural justice apply to both judicial and administrative determinations. They are not limited to judicial decisions. As was stated in Wood v. Woad (1874) L.R. 9 Ex. 190, 196 by Kelly C.B., that the rule.

“is not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals”

See also Twist Randwick Municipal Council (1976) 136 C.L.R. 106, and particularly the judgment of Mason J. at p. 113, citing Municipal Council of Sydney v. Harris (1912) 14 C.L.R. 1 at p.15. They have been applied to decisions by Immigration Officers, Prison Authorities, Administrative Officers in the discharge of their functions. See Board of Education v. Rice (1911) E AC. 179, Araoye v. Akande (1968) 1 All ER. 214

In R. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 1 All ER.770, it was applied in determining what compensation, if any, to award to an applicant for compensation for injuries. In Reg. v. Kent Police, Ex parte Godden (1971) 2 QB. 662, it was held that when a medical practitioner is making a decision which may lead to a person being retired compulsorily he must act fairly. The view held was that decisions leading to compulsory retirement are of judicial character and must conform to the rules of natural justice. The decision of the doctor is not final as to the retirement, it is merely the basis on which the decision to retire rests. In R v. Coleshill Justices, Ex parte Davies & anor. (1971) 3 All ER. 929, certiorari was issued to quash the committal of the justices on the ground that they did not consider all the necessary evidence. It was said, at p. 931 – 932

“It is a condition precedent to committal for trial of young person under S.6(1) that the justices should be of opinion that there is sufficient evidence to put him on trial; they cannot in my judgment possibly form such an opinion without consideration of the evidence, and accordingly it is clear that the procedure for committal without consideration of evidence under S.1 of the 1967 Act does not and cannot apply to the committal for trial of a young person to whom S.6(1) of the 1969 Act applies”

The principle of natural justice applies in all cases where the preliminary investigation or inquiry is an integral or necessary part of a process which may terminate in action adverse to the interests of the applicant claiming the right to be heard. It seems inescapable on the facts in the appeal before us that Appellant Committee is obliged to observe the rules of natural justice and is therefore bound to be constituted in such a manner as to secure its independence and impartiality.

Observation on the provisions constituting the Legal Practitioners’ Disciplinary Committee.

Counsel for the Appellant has invited us to make a pronouncement for the guidance of the Nigeria Bar Association with respect to the Legal Practitioners’ Disciplinary Committee in subsequent cases. In my opinion the defect in the Legal Practitioners’ Disciplinary Committee, does not lie only in the combination of its both investigative and adjudicative functions in the same body. It lies essentially in the inevitability of the Attorney-General as Chairman of the Committee, who is also the prosecutor before the Committee thereby violating the principles of natural justice. As long as the investigative and the adjudicative functions are vested in the same body with the Attorney-General as its Chairman, so will the violation of S.33(1) continue. The situation can be saved by amendment of the Legal Practitioners’ Decree to return to the status quo ante. It can also be saved by employing ap independent prosecutor to lay the charges and prosecute. It is not a contravention of the principles of natural justice for a professional body to complain against and try one of its members. It is however essential that those involved in the exercise should undertake it in a purely formal and nominal capacity. There should be no inference that they have actively participated in bringing up the accusations. Under the Legal Practitioners Act 1962, there were both the Investigation Panel and the Disciplinary Tribunal, responsible for investigation and adjudication of allegations of misconduct respectively. This arrangement will restrict the Attorney-General to membership of the Investigation Panel, and avoid the situation where he will be a prosecutor and judge in the same proceedings. In my opinion the Legal Practitioners’ Disciplinary Committee as constituted, violates the provisions of Section 33(1) of the Constitution 1979.

The conclusion which follows from the above analysis is that the composition of section 9(1) of the Legal Practitioners’ Disciplinary Committee in this case, not being a court or tribunal constituted in such a manner as to secure its independence and impartiality, violates the provisions of 5.33(1) of the Constitution 1979. Accordingly, the Court of Appeal was right in dismissing the appeal. I too will dismiss this appeal. I make no order as to costs.

OPUTA, J.S.C.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother Aniagolu, J.S.C. The facts which are not in dispute were clearly and accurately stated. The Constitutional provisions dealing with the “Right to Fair Hearing” and the relevant judicial decisions interpreting them were stated with remarkable precision and succinctness. I am therefore in complete agreement with his reasoning and conclusion. This should have concluded my concurring judgment. But this case has some special significance. It has attracted a good deal of publicity; it involves the Legal Profession, a profession to which our lawyers and judges- ministers in the sacred temple of justice-belong. The issue at stake – namely the Rules of Natural justice – should be of paramount importance to the Legal Profession, a profession dedicated (more than any other profession) to the search for truth and justice in its adjudicative process; a profession which should therefore abide by the time honoured dictates of what Lord Campbell, C.J. in Ex parte Ramshay (1852) 18 QB 173 at p. 190 called “the principles of eternal justice” but what is usually referred to as the “rules of natural justice”. I am therefore of the opinion that the fullest expression should be given to the views of my learned brothers – Lords and Justices of the Supreme Court – in support of, or else, as additional emphasis to, the points so ably made in the lead judgment.

In his Brief for the Appellant subnomen “The Case for Each Party” Chief Williams, SAN noted:-

“A close look at the rival contentions urged upon the Court by each party will reveal that there is hardly any dispute as to the basic principles of constitutional law applicable to the facts. The dispute arises only with respect to the application of those principles to the particular facts and circumstances of this case. It is common ground between the parties that in the determination of the complaint and charges lodged against him before the Legal Practitioners Disciplinary Committee, the Respondent is “entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”. It is the Respondent’s contention that as at present constituted, the Legal Practitioners Disciplinary Committee is not qualified as “a tribunal….constituted in such a manner as to secure its independence and impartiality” by reason of the presence on the Committee of the Attorney-General of the Federation and 3 other members who were involved in the initiation of the complaint and charges against him…”

The question now is – Is this contention of the Respondent an accurate statement of the law on the subject? In this appeal therefore, the essential issue is the extent of the Right to fair hearing guaranteed in Section 33 of our 1979 Constitution. Was the Respondent’s right under S.33 infringed or else threatened with infringement? This Court in Alhaji Isiyaku Mohammed v. Kano N.A. (1968) 1 All N.L.R. 242 at p. 426 has held that “a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing…. The true test of a fair hearing … is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case”. This reasonable person, will, naturally, be looking for the following in order to determine whether the “trial was fair and whether justice has been done:-

1. How was the tribunal or the forum competens composed? Was it composed of “judges” or “persons” whose impartiality and fairness were transparent; persons who, taking into account our common human weakness, can exercise a detached attitude towards the facts presented to them; persons whom the Respondent will have no cause to suspect or distrust; persons in whom the Respondent reposed confidence? Justice, in the final analysis, must be rooted in confidence and that confidence may be destroyed by the conduct and/or utterances of the judex – (person adjudicating) – giving the impression that he was biased: Metropolitan Properties Co. (FGC) Ltd v. Lannon (1968) 3 All. E. R. 304 at p. 310.

2. Was the person whose conduct was being inquired into, given the opportunity to listen to and reply to all the allegations made against him; and was nothing adverse said about him in his absence?

These are the twin pillars of fair hearing or fair trial. They are also the twin pillars of natural justice; they are the rules against bias and the right to be heard. In the latin days of jurisprudence, the Ancient Romans put these two rules into two latin maxims:

“1. [Nemo judex in causa sua]; and

2. Audi alteram partem”

In the English days of jurisprudence, they have been reduced to two very familiar words – Impartiality and Fairness. They are distinct but closely related concepts. Impartiality relates to the forum itself, while fairness relates to the right of the person accused to be heard:- Kanda v Government of Malaya (1962) A.C.322(back to top?)

I will now examine the facts and circumstance of what happened in this case to find out whether the Respondent’s fear that his right to fair hearing (which the Appellant concedes) was so seriously and substantially threatened as to warrant his application for a writ of prohibition against the Legal Practitioners Disciplinary Committee. The facts which are not in dispute are as follows:-

1. The National Executive Committee of the Nigerian Bar Association in its meeting at Calabar on the 24th April 1981 considered an “Advertisement in Press” published in the “West Africa” magazine issue of 23rd March 1981 at page 421 where the Respondent was alleged to have “advertised” himself as –

“The famous, reputable and controversial Nigerian Lawyer”. The members of the Executive Committee “expressed strong disapproval of this Advert” and resolved “that the matter should be referred to the Disciplinary Committee”. This was done.

It is relevant here to single out for special mention 3 members of the National Executive Committee who discussed the offensive Advert; expressed strong views against same and took part in the resolution to refer this alleged conduct of the Respondent to the Legal Practitioners Disciplinary Committee because they later on sat on the self same Disciplinary Committee to determine whether or not the Respondent was guilty (by reason of the said Advertisement) of professional misconduct or to use the phraseology of Section 10(1)(a) of the Legal Practitioners Decree, now Act No.15 of 1975 “in famous conduct in any professional respect”. They were Messrs. A. Fadayiro, Idowu Sofola and D.C.O. Njemanze. It is also worthy of note that the present Attorney-General of the Federation and Minister for Justice, Mr. Chike Ofodile, SAN (who is the current ex-officio Chairman of the Disciplinary Committee) was also present at the Calabar meeting of the Executive Committee. This is stage 1.

Stage 2 concerned what the then incumbent Attorney-General and Minister for Justice, Chief Richard Akinjide did – the part he played regarding the complaint made to him against the Respondent by the Executive Committee of the Nigerian Bar Association. Under his authority and with his presumed approval the Respondent was written a letter dated 1st December 1981. It may be necessary to reproduce paragraphs 2 and 3 of this letter;-

“2. It is the view of this Ministry that the conduct offends against Rules 33 and 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.68, No.5 of Vol.67 in the Official Gazette of 18th January, 1980 which prohibits ADVERTISING, TOUTING AND PUBLICITY.

3. I am therefore directed by the Honourable Attorney-General of the Federation to request you to show cause by way of written explanation within 14 days hereof why the matter should not be referred to the Legal Practitioners Disciplinary Committee for appropriate action”

Although the letter of 1st December, 1981 gave the Respondent 14 days within which to explain the circumstances surrounding the advertisement complained of, surprisingly on the 3rd of December 1981, two days after the issue of the letter of 1st December 1981, and before the receipt of any explanation from the Respondent, or the expiration of the 14 days gratuitously granted him, two charges were framed by the office of the Attorney-General against the Respondent. These charges were alleged to be in contravention of Rules 33 and 34 of the Rules of Professional Conduct in the Legal Profession published as Government Notice No.69 of 18th January, 1980. The complainant in these charges was the “Federal Ministry of Justice” see Ex. D3. By Sections 136(1) and 138(1) of the 1979 Constitution the Attorney-General is the Minister to whom responsibility for the business of the Ministry of Justice is assigned. He was therefore deemed to have preferred the charges against the Respondent. In addition to preferring the charges, the Attorney-General as Chairman of the Legal Practitioners Discipline Committee sat on 25th January. 1982″to consider and determine” the case against the Respondent as he was empowered to do by S. 9(1) of Legal Practitioners Act No.15 of 1975. The net result of all these is that the Attorney-General qua Attorney-General received the complaint of the National Executive Committee and without any investigation or response from him (the Respondent) to the opportunity offered to him (the Respondent) to explain or defend the allegation made against him, the Attorney-General preferred two charges of “infamous conduct in a professional respect” against the Respondent. Then the self same Attorney-General qua adjudicator empanelled the Disciplinary Committee consisting, in part, of Fadayiro, Sofola and Njemanze, three members of the National Executive who originally referred this case of professional misconduct against the Respondent to him. The Attorney-General as Chairman of the Disciplinary Committee very well answered the description the Respondent gave him of “Chief Judge” as all the other members of the Disciplinary Committee were merely, so to speak, “judges” “charged with the duty of considering and determining any case where it is alleged that a person whose name is on the roll has mis-behaved in his capacity as a legal practioner” -Section 9(1) of the Legal Practitioners Act. 1975. It is important to recognise that when the law confers on an authority or committee or body of persons, the power or the duty to make a determination affecting the rights of individuals, it is presumed that that power should be exercised judicially and in accordance with, the rules of natural justice:- The Queen Ex parte I.O.G. Adebo v The Governor-In-Council Western Nigeria (1962) 2 All N.L.R. 195 at p.205.

The Disciplinary Committee does not hear and determine cases against legal practitioners for the fun of it. No. Under Section 10(1)(a) of Legal Practitioners Act:-

“10-(1) where-

(a) a person whose name is on the roll is judged by the Disciplinary Committee to be guilty of infamous conduct in any professional respect

the Disciplinary Committee may, if it thinks fit, give a direction

(1) ordering the Registrar to strike that person’s name off the roll”.

There is nothing in the whole Act to suggest that the Registrar has a discretion in the matter or that he can refuse to obey the Disciplinary Committee’s direction. In other words, the Disciplinary Committee’s direction is an Order to the Registrar. This direction or order may cause a legal practitioner untold injury to his honour, his reputation and result in his being prevented from practising his chosen profession and inferentially loss of his means of livelihood. These are very serious consequences. Any step in the process of arriving at this awesome and gloomy prospect for a legal practitioner should therefore be subjected to the searchlight of the two pronged rules of natural justice namely impartiality and fairness. The rule against fairness was broken in this case, when the Attorney-General who gave the Respondent 14 days to explain or defend the allegations of “Advertising, Touting and Publicity” made against him, for no apparent reason (save, it be an eagerness to have the Respondent disbarred) two days after, without receiving any reply from the Respondent and without keeping his promise of 14 days’ grace, hastily preferred charges against the Respondent:- see Board of Education v. Rice (1911) A.C. 179 at p.182. The rule against bias, or the rule prescribing impartiality was broken when the Attorney-General prosecutor and the members of the National Executive/complainants-members, who should, in the regular and normal course of events, have been witnesses during the adjudication, were elevated to the status of adjudicators. They thus became judges in their own cause. This is against the rule of natural justice.

In Wood v Woad (1874) L.R. 9 EX.190 Kelly, C.B. in construing the rules of a Mutual Insurance Society which stipulated that:-

“if the committee shall at any time deem the conduct of any member suspicious, or that such member is for any other reason unworthy of remaining in this society, they shall have full power to exclude such member, by directing the Secretary to give such member notice in writing that the committee had excluded such member from the society…..”

held at p.196:-

“I agree that if the committee in fact exercised their power under the rules, their decision could not be questioned … But they are bound in the exercise of their functions by the rule expressed in the maxim audi alteram partem, that no man shall be condemned to consequences resulting from alleged misconduct unheard and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals”, (italics mine).

The portion of Kelly’s judgment italicised above clearly shows that the Disciplinary Committee though not a court or tribunal stricto sensu, is nonetheless “a body of persons invested with authority to adjudicate upon matters involving civil consequences to individual legal practitioners,” like the Respondent. It is therefore bound to observe the twin rules of natural justice one-of which is Nemo judex potest esse in propria causa. The Attorney-General, Chief Richard Akinjide, Messrs Fadayiro, Sofola, Njemanze, could not validly have been both complainants, prosecutors, judges and jury all rolled into one. That is extremely dangerous and is patently offensive to all civilised ideas of justice:- Obadara & ors. v President Ibadan West District Grade D Customary Court (1964) 1 All N. L. R. 336 at p.344. In Fisher v. Keane (1878) 11 Ch.D. 353 Jessel M.R. aptly observed:-

“They ought not, as I understand it according to the ordinary rules by which justice should be administered by committees of Clubs or by any other body of persons who decide upon the conduct of others, to blast a man’s reputation for ever -perhaps ruin his prospects for life without giving him an opportunity of either defending or palliating his conduct” (italics mine)

The ordinary rules by which justice should be administered are of course the rules of natural justice. Jessel, M.R. in Fisher’s case supra was, no doubt, dealing with the audi alreram partern rule. His strictures would have been equally severe if he were in that case dealing with the Nemo judex in causa sua arm of the rules of natural justice. However his observation that the rules of natural justice applied to “Committees of Clubs etc” is relevant, for, a fortiori, they will apply to the Disciplinary Committee set up by the Statute with frightening disciplinary powers. The debate over what constitutes a judicial tribunal, a quasi judicial tribunal, a domestic tribunal, a tribunal simpliciter, arbitrament, arbitral proceedings, forum competent etc. will certainly go on as an academic exercise; but once a body of persons by whatever name called are invested with authority to hear and determine particular issues or disputes either by consent of the disputants or by an order court, or by the provision of a Statute, such a body will be required to carry out it function with that fairness and impartiality which the rules of natural justice dictate. Therefore, the Legal Practitioners Disciplinary Committee which exercises, under the Legal Practitioners Act of 1975, the important function of considering and determining cases of misconduct al1eged against legal practitioners should in every step they take in this important sphere of human activity be guided by the immortal principles of eternal or natural justice. That seems to be elementary enough.

A Minister for Justice cannot plead ignorance of the rules of natural justice and he will not be true to either his name or his office, if in the process of depriving a legal practitioner of the means of his livelihood he acts otherwise than in accordance with the rules of natural justice. He will like Caesar’s wife be above suspicion – both the suspicion of bias and/or the suspicion of unfairness: see Leeson v General Council of Medical Education (1890) 43 Ch.D. 366 at 0,385. I entirely agree with Denning L.J. (as he then was) that “these bodies, however, which exercise a monopoly in an important sphere of human activity, with the power of depriving a man of his livelihood, must act in accordance with the elementary rules of justice”: see Abbott v Sullivan (1952) 1 Q.B. 189 atp.198. Although Denning, L.J. (as he then was) described the rules as “elementary” Evershed, M.R. in the very same case at p.195 observed that:-

“The principles of natural justice are easy to proclaim but their precise extent is far less easy to define”.

Chief Williams, S.A.N. in stating, (in his Brief) the “Case For Each party” conceded that the facts were not in dispute, the basic principles of constitution allow applicable are not in dispute. The dispute is over the issue – How far do these rules apply to the Legal Practitioners Disciplinary Committee?

In other words – the purpose of this appeal is for this court to define the precise extent of those principles in the context of the present case. Thus at page 5 of his Brief, Chief Williams noted – “The guidance of the Supreme Court is required on the issue so raised”.

Chief Williams was quite right, and I must say that he was here approaching the delicate and difficult task of defining the precise extent and the special and peculiar circumstances calling for the invocation of the principles of natural justice with a good deal of intellectual humility. Afterall, even in the House of Lords itself, Lord Evershed in Ridge v. Baldwin (1964) A.C. 40 at pages 85 and 86 commented upon and admitted the same difficulty. I can do no better than quote with approval and adopt his statement in that case with regard to where and when those principles (of natural justice) ought necessarily to be invoked:-

“It has been said many times that the exact requirements in any case of the so called principles of natural justice cannot be precisely defined, that they depend in each case upon the circumstances

of that case. According to Sir Frederick Pollock, “the meaning of the phrase natural justice” is “the ultimate principle of fitness with regard to the nature of man as a rational and social being”…. your Lordships were, therefore, not unnaturally referred to a great many cases, but, as I believe your Lordships agree, it is by no means easy to treat these decisions as entirely uniform and still less easy to be able to extract from them the means of propounding a precise statement of the circumstances or of the cases in which the principles can be invoked before the courts. I am, however, content to assume that the invocation should not be limited to cases where the body concerned, whether a domestic committee or somebody established by Statute is one which is exercising judicial or quasi judicial functions strictly so called; but that such invocation may also be had in cases where the body concerned can properly be described as administrative – so long as it can be said….that the invocation is required in order to conform to the ultimate principle of fitness with regard to the nature of man as a rational and social being”.

One plank of Chief Williams’ submission was that the Disciplinary Committee – the Appellant – “in considering and determining” this case “where it was alleged that a person (here the Respondent) whose name is on the roll has misbehaved in his capacity as a legal practitioner” under Section 9(1) of the Legal Practitioners Act 1975 – was acting in an administrative capacity.

That may well be, but all the same, even there, the invocation of the principles of natural justice was necessary in order to make the Disciplinary Committee “conform to the ultimate principle of fitness with regard to the nature of man as a rational and social being”. It stands to reason that the Appellant “considering and determining” any conduct which may seriously affect the civil and legal rights of Legal Practitioners including the Respondent should bring to bear on such consideration and determination the human and social attributes of impartiality and fairness – call them the principles of natural justice if you please.

We have to bear in mind that we are not here dealing with ordinary citizens who may not appreciate the rather fine distinction between actual bias and the mere likelihood of bias; we are not here dealing with the Committee of a Mutual Insurance Society as in Wood v. Woad supra; we are not here dealing with the Committee of Dock Workers as in Vine v National Dock Labour Board (1956) 1 All E.R. 1 (1957) A.CA88; rather we are dealing with the Legal Practitioners Disciplinary Committee composed as it is, under Section 9(2) of the Legal Practitioners Act No.15 of 1975 of very eminent State Attorneys-General, very eminent legal practitioners “of not less than ten years standing”, chairmaned by the Attorney-General of the Federation and Minister for Justice. Such a Committee of very learned men cannot plead ignorance of the rules of natural justice nor can they be unaware of the hallowed place those rules occupy in every process of adjudication. In any event, if such a Committee should err, it should be abundantia cautela. It should err more on the side of over-observance of these sacred rules rather than on the side of under-observance not to mention the breach of these rules.

The Respondent’s case is based solely on his fear that as constituted, there exists a very strong likelihood of bias against him, by the Disciplinary Committee; that the Attorney-General (Chief Richard Akinjide) the Chairman of the Committee by his undue haste in preferring the charges against him had eroded that brittle bond of confidence which is of the essence of adjudication; that the 3 members of the National Executive Committee of the Nigerian Bar Association on the Disciplinary Committee, by their foreknowledge of the facts; by the views they expressed in Calabar; cannot be expected to approach his case with the requisite detachment and impartiality which natural justice demands. Incidentally the Respondent’s fear was well founded. The court of first instance so found and the court below confirmed this finding. I agree with both courts. The possibility of bias in this case cannot be said to arise from personal prejudice against the Respondent by these four members of the Disciplinary Committee (at least there was as yet no such evidence) but the likelihood of bias may be inferred from the dual capacities in which these members were acting:- R v. Milledge 4 Q.B.D. 322. Here it was plainly the duty of the Attorney-General qua Attorney-General to decide that there was at least a prima facie case of professional misconduct made against the Respondent before preferring his charges, EX.D. Having so decided, it is obvious that he (the Attorney-General) as Chairman of the Disciplinary Committee cannot approach the trial of the Respondent as Attorney-General qua adjudicating Chairman of the Disciplinary Committee with an entirely open mind. Even if he could achieve that almost humanly impossible feat, if the case went against the Respondent, he (the Respondent) will naturally go away feeling that the Chairman was biased:

Lawson v Local Authority Aba (1944) 10 W.A.C.A. 228 at p.229: see also Kujore & ors v Otubanjo (1947)10 S.C.173 at p.181. With regard to the 3 members of the National Executive Committee of the Nigerian Bar Association who sat on the Disciplinary Committee, their mere presence on the Disciplinary Committee offended against the principle that justice must not only be done but must also be manifestly seen to have been done:- Dr. M. O. Alakija v The Medical Disciplinary Committee (1959) 4 F.S.C. 38 at p.39: see also R v Sussex Justices ex parte McCarthy (1924) 1 K.B. 256 at p.259.

The next disturbing feature about the composition of the Disciplinary Committee which struck much fear into the respondent is that he had no confidence in the impartiality of the Committee and the facts and circumstances support his fear. As Lord Denning, M.R. observed in Metropolitan Properties Co. (FGC) Ltd. case supra “justice must be rooted inconfidence and that confidence is destroyed when right-thinking people go away thinking that the judge was biased” I have no evidence that the respondent is not a right-thinking person. All his affidavits in this case point to a feeling of insecurity based on the likelihood of having to face a biased Disciplinary Committee. In any event, the test of the existence of the likelihood of bias is objective not subjective and any reasonable man faced with the facts and circumstances of this case will genuinely fear the likelihood of bias. The purity of the administration of justice is so jealously guarded that if there are any circumstances so affecting a person or body of persons called upon to determine the rights of follow human beings, as to be calculated to create in the mind of a reasonable man a suspicion of those persons’ impartiality; those circumstances in themselves and by themselves alone, are sufficient to disqualify the person or persons from adjudicating. Taking a prior part in the “proceedings” leading to the case against the respondent before the Disciplinary Committee is one such disqualifying circumstances. Law v. Chartered Institute of Patent Agents (1919) 2 Ch. D. 276 at p. 289. As Lord Bowen, L.J. aptly observed in Lesson’s case supra “If he is an accuser he must not be a judge, if he is to be a judge he must not be an accuser” and the question whether he has or has not been an accuser is one of fact to be determined in each particular case. ]n this case, two courts have concurrently found that the Attorney-General (Chief Richard Akinjide), and Messrs. Fadayiro, Sofola and Njemanze were accusers. They should not therefore have been on the Disciplinary Committee: see also Re Godden (1971) 3 All E.R. 20 at p. 27 where Salmon, L.J. observed:-

“I do not think that it would be fair to Dr. Crosbie to ask him to conduct what is in effect a quasi judicial enquiry to decide the very question about which he had formed a firm view nearly a year ago. Moreover justice would not be seen to be done; because the Chief Inspector would no doubt say: “Well, this man has already made up his mind….It would be unfair that he should now be asked to decide the question afresh and quite impartially – a question which is vital to me -in circumstances such as these”

And this is the awful indictment against the Legal Practitioners Act No. 15 of 1975. It is the Act that placed the Attorney-General (Chief Richard Akinjide) and the 3 members of the national Executive Committee of the Nigerian Bar Association in the unenviable position of accusers as well as judges. Discipline in the Legal Profession is very necessary. I seriously doubt if this discipline can be achieved under the present law – Act No. 15 of 1975. There is an urgent need for an amendment of the law to provide for two ancillary but yet independent bodies namely:-

(a) An Investigating Panel which will conduct all necessary investigations regarding allegations of misconduct against a legal practitioner. If this panel is satisfied that there is a prima facie case made out, then it will prefer charges. But it will not “consider or determine” those charges. That function which is really adjudicative will then be left to the second body:-

(b) The Legal Practitioners Disciplinary Tribunal This tribunal will then try the legal practitioner and if it finds him guilty, it will feel free to impose the appropriate penalty. To ensure the observance of the rules of natural justice, no one person will serve on both bodies. This will inspire confidence. That is the position in England; that was the position in Nigeria under the 1962 Legal Practitioners Act.

I seriously doubt if any legal practitioner can be successfully proceeded against; under the 1975 Act without dangerously infringing and flagrantly encroaching upon the sacred principles of natural justice. And the earlier this amendment is made the better for the legal profession in this era of the War Against Indiscipline.

Under the law as it now is, it is highly unlikely that the Respondent can successfully be proceeded against by the Disciplinary Committee without getting again into grips with the rules of natural justice. The present Attorney-General, Chike Ofodile, S.A.N. will be disqualified by reason of being one of the members of the National Executive Committee who met in Calabar on 24/4/81 and considered “the offensive advertisement” ascribed to the Respondent. He took part in the discussions and the subsequent resolution to refer the complaint to the Disciplinary Committee. By S.9(2)(a) of Act No. 15 of 1975 “the Attorney-General of the Federation shall be the Chairman of the Disciplinary Committee” In view of paragraph 5 of Schedule 2 to the Legal Practitioners Act ]975, the Solicitor-General of the Federation may be directed by the Attorney-General of the Federation” to act in his place as a member of the Disciplinary Committee for the purpose of any case;” When he (the Solicitor-General) so acts, he automatically becomes the Chairman. The question now is – Can the Solicitor-General of the Federation chair the Disciplinary Committee to handle the case against the Respondent? Is he himself free from the taint of the “likelihood of bias”?

I doubt it. For one thing, the letter of 1st December, 1981, Ex. C alleging professional misconduct against the respondent and giving him 14 days “to show cause why the matter should not be referred to the Disciplinary Committee” was signed by one Mrs. O. O. Fatunde for Solicitor-General of the Federation and Permanent Secretary. Secondly the Charge Sheet, Ex. D2 was signed by Mrs. O. O. Fatunde (working under the Solicitor-General of the Federation) as Prosecutor. Thirdly in Ex. D3, the Complainant was put down as “Federal Ministry of Justice” The Solicitor-General for the Federation is also the Permanent Secretary of the Federal Ministry of Justice. I think the Solicitor-General of the Federation was too involved in this case to be eligible to serve as Chairman of the Disciplinary Committee. He and the Attorney-General, Chief Richard Akinjide, were tarred with the same brush. This again emphasises the urgent need for an immediate reform of the Legal Practitioners Act No. 15 to make it accord with “the principles of eternal justice” and clear away everything that might engender suspicion and distrust of the Disciplinary Committee, and so promote in legal practitioners whose professional activities are being investigated that feeling of confidence which is radically and fundamentally of the essence of adjudication.

I may now deal with Chief Williams’ contention that the Disciplinary Committee is not bound by the rules of natural justice because the respondent will have ample opportunity of being heard by the Appeal Committee of the Body of Benchers and ultimately by the Supreme Court. It is correct that Section 11 of Act No. 15 of 1975 established an Appeal Committee of the Body of Benchers “charged with the duty of hearing appeals from any direction given by the Disciplinary Committee” But the mere concept of an appeal presupposes a judge or court or tribunal a quo from whose decision the case goes on appeal to a judge or court or tribunal ad quem – a higher forum with the power to review the decision of the trial court or judge. My learned brother, Aniagolu, J.S.C. has dealt adequately with this issue. I agree with him that the direction of the Disciplinary Committee is a decision which may affect seriously and, may be, adversely the civil rights of the respondent. Whether it is final or not is irrelevant to the observance of the rules of natural justice in reaching that decision. I can see no valid reason why if the principles of natural justice have to be applied to a tribunal entrusted with a final decision, the same should not be true of a tribunal which has to decide a preliminary point which may affect the rights of the parties. I am here in complete agreement with Lord Guest: see Pearlberg v. Varty (1972) 1 A.L.R. 534 at p. 540 and p. 547.

I have not considered Chief Williams’ submission on Section 33(2) of the 1979 Constitution because that had been adequately dealt with in the lead judgment.

In the final result, for all the reasons given above, and for the more detailed reasons in the lead judgment of my learned brother, Aniagolu, J.S.C., this appeal fails and it is hereby dismissed. The judgment of the court below is hereby affirmed with costs to the respondent assessed at N300.00.

Appearances

Chief F.R.A. Williams, SAN. (Chief G.C.M. Onyiuke, SAN, Kehinde Sofola, SAN, Chief E.A. Molajo, SAN. and F.R.A. Williams, (JNR). with him) For the Appellants

Chief Gani Fawehinmi For the Respondents