LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL (APPELLANT)
IDOWU G. (RESPONDENT)
(1971) All N.L.R. 128
Division: Federal Supreme Court
Date of Judgment: 15th April, 1971
Case Number: Suit NO. S.C. 157/1970.
Before: Ademola, C.J.N., Coker, Madarikan, JJ.S.C.
In The Matter of the Legal Practitioners Act 1962 in Re: G. Idowu: A Legal Practitioner
Appeal from the Legal Practitioners Disciplinary Tribunal.
(1) In interpreting Section 7(a) of the Legal Practitioners Act it is not enough that the practitioner be guilty of infamous conduct only, but it must be such conduct arising out of or pertaining to his profession. It was never intended that infamous conduct which has no relevance whatsoever to the profession of the professional before the Tribunal was ever contemplated.
(2) From the evidence before the Tribunal the Supreme Court did not think that the legal practitioner concerned in this matter was acting in any professional capacity to secure the services of a surveyor. He might have misused his official position; and if it were alleged that he stole the money he received in any way, the Tribunal, at this stage, would not be the proper forum to try his conduct. The Supreme Court did not see that any case had been proved against Mr Idowu affecting his conduct in a professional capacity.
(3) There was no allegation in the charge, and indeed no evidence before the Tribunal that Mr Idowu occupied a position (e.g. Legal Adviser in respect of payments for compensation) in the Electricity Corporation of Nigeria which made it improper on his part to receive a cheque from Mr Habeeb, nor was it stated that the cheque was given for illegal or improper consideration. The charge certainly did not allege any misconduct on the part of Mr Idowu nor was there any evidence of such misconduct before the Tribunal. The charge in disciplinary actions of this nature should contain the misconduct complained of and it must be proved.
(4) Rule 10(2) of the Rule made under the Legal Practitioners Act calls for strict adherence to the Evidence Act by the Tribunal.
(5) At the close of the case of the defence, that was the end of the complaint before the court, and the only evidence which could be allowed, at the discretion of the court, was evidence of rebuttal if the accused person had given evidence. In the present case the Tribunal had erred to have allowed evidence of the two witnesses or to have called this evidence itself in order to strengthen the case against the practitioner.
All exhibits tendered and admitted in evidence in any case must be kept by the court or Tribunal which hears the case for the statutory period and later to be sent up to the Supreme Court with other records of appeal, when there is an appeal.
Appeal allowed: Order of Tribunal set aside.
Cases referred to:
Dr I.O.A. Denloye v. Medical and Dental Practitioners Disciplinary Tribunal, S.C. 91/1968.
Ex-parte Meeham, (1965) New South Wales (Australia) Report 30.
Act referred to:
Legal Practitioners Act, Section 7(a).
Rules referred to:
Legal Practitioners (Disciplinary Tribunal) Rules, 1965, Rule 10(1); (2).
APPEAL from the Legal Practitioners Disciplinary Tribunal.
Suit NO. S.C. 157/1970.
Chief Williams for the Appellant.
Ogundere, Ag. Deputy Solicitor-General for the Respondent.
Ademola, C.J.N. (delivering the judgment of the court):-The legal practitioner, Mr Idowu, in this matter, after the complaint against him had been examined by an investigating panel, was summoned before the Legal Practitioners Disciplinary Tribunal which commenced its sitting in Lagos on 18th February, 1970, and which appeared to have completed its investigations on 9th April, 1970, when it adjourned indefinitely for judgment. From the record before us there is a judgment, but no date is recorded when it was delivered.
The charge which was referred to the Investigating Panel reads:-
"By a letter dated 17th June, 1968, addressed to the Honourable Attorney-General of the Federation, His Lordship the Chief Justice of Lagos State complained that Suit No. LD 123/68 between chief A.L.O. Ojora and E.C.N. and eight others, which came before him for hearing on 7th and 12th June, 1968, involved the receipt of compensation money to the tune of £14,000 by Mr H.A. Hakeem Habeeb. The cheque instead of being made payable to Chief Ojora the titular head of the family was made payable to Mr H.A. Hakeem Habeeb who made out payments to the tune of £14,000 as contained in a schedule of payments filed in Court. From this schedule of payments Mr G. Idowu, a legal practitioner attached to the E.C.N. who is not a member of the Ojora Family received a sum of £1,910. It is also stated in Counsel's opening address to the court that Mr S. Olatunji, who is not a member of the Ojora Family was paid a sum of £2,000 by Mr Hakeem Habeeb, and finally that a half-sister of Mr Hakeem Habeeb received a sum of £1,500."
After hearing the evidence, the Tribunal found against Mr Idowu and the relevant portion of the findings reads as follows:-
"In any event, we are quite satisfied, quite apart from the fact that Mr Gilbert had died before the matter arose, that there was no plan drawn or any work done by Mr Gilbert for which the money could have been paid to him, that there was no receipt from Mr Gilbert and that Mr Idowu's conduct in entering into any arrangement with his clients' adversaries for the payment of money to himself amounts to misconduct in a professional respect."
In the result, Mr Idowu was suspended from practice as a legal practitioner for a period of two years and was prohibited from making any application under Section 9(2) of the Legal Practitioners Act, 1962 until the expiration of the period of his suspension.
From the Order of this suspension Mr Idowu has appealed to this Court under Section 7(6) of the Legal Practitioners Act, 1962.
It would appear that the events which led up to this matter started in the High Court of Lagos in a civil matter between members of the Ojora Chieftaincy family. As a result of certain evidence before the court, the learned Chief Justice of the Lagos High Court who heard the case referred certain matters to the Legal Practitioners Investigating Panel. The facts are that compensation money amounting to a sum of some £14,000 due to the Ojora Chieftaincy family was paid by the Electricity Corporation of Nigeria to one Hakeem Habeeb a member of the Chieftaincy family. Out of this amount Habeeb paid out some amounts to different persons including Mr Idowu to whom a sum of £1,910 was paid by cheque. The charge is that Mr Idowu a legal practitioner, received this sum, not being a member of the Ojora family.
In arguing the appeal before us, Chief F.R.A. Williams based his grounds on two submissions which in effect are as follows:-
(1) That Section 7 of the Legal Practitioners Act No. 33 of 1962, states in effect that the infamous conduct complained of is in professional respect, and that under the relevant Section 7(1)(a), a legal practitioner cannot be punished for all misconducts, but only misconducts in any professional capacity or respect.
(2) That after the case against Idowu had been closed and he offered no evidence in his own defence, it was not competent for the Tribunal to allow two more witnesses to be called, or for the Tribunal itself to call the two witnesses to give evidence against Mr Idowu which led to prove his guilt.
Dealing with the second submission, we observe from the portion of the judgment of the Tribunal, to which we have earlier referred, that the Tribunal did not rely only on the evidence of the two witnesses who gave evidence that Mr Gilbert had died before the transactions which led to the charge in arriving at the guilt of Mr Idowu. We find it necessary, however, to relate briefly the incident which led to these two witnesses being called to give evidence.
Mr Ogundere, Counsel appearing against Mr Idowu, admitted before us that these two witnesses were in Court (or outside the court) during the proceedings. They were never called to testify before the case against Mr Idowu was closed. When the case was closed, Counsel for Mr Idowu stated he was not calling evidence and closed his case. Then the Chairman of the Tribunal said it could be of importance to ascertain the date of the death of one Mr Gilbert, a surveyor, as that would be of great help for the Tribunal to arrive at its decision and the evidence of the date of Mr Gilbert's death was to be procured. Chief Akin Olugbade the junior Counsel for Mr Idowu who was then the only one appearing in the absence of Chief F.R.A. Williams thought he might be able to help. The proceedings were then adjourned. At the next hearing Chief F.R.A Williams raised the point again that as the case was closed on both sides it would be wrong to call any more witnesses. We must state that Mr Ogundere had earlier stated that he had Mr Gilbert's son and another witness in Court and he wished to call both of them to prove the date of the death of Mr Gilbert. On an objection being taken by Chief F.R.A. Williams as we stated, the Tribunal pointed out that it had power to call any evidence at any stage of the proceedings and relied upon Rule 10 of the Legal Practitioners (Disciplinary Tribunal) Rules, 1965. The Tribunal further stated that it had decided to call the witnesses and would hear them. Whereupon Chief Williams said that they (Counsel) would not participate further in the proceedings and would not put questions to the witnesses. After the evidence of these witnesses, Counsel on both sides addressed the court.
We consider it appropriate at this stage, to deal with Rule 10(1) of the Legal Practitioners (Disciplinary Tribunal) Rules, 1965. It states:-
"10.- (1) The Tribunal may in the course of its proceedings, hear such witnesses and receive such documentary evidence as in its opinion may assist it in coming to a conclusion as to the truth or otherwise of the allegations of misconduct referred to it by the panel."
We have had cause to deal with a similar rule in the case Dr E.O.A. Denloye v. Medical Practitioners Disciplinary Tribunal, SC.91/68 decided by this Court on the 22nd November, 1968. That case, of course, went beyond the present case, but it appears to us that the results are the same. In Denloye's case the Tribunal had completed all proceedings and adjourned to a later date for judgment. Parties and their Counsel were summoned to appear and instead of delivering a judgment the Tribunal decided to call further evidence to prove the guilt of the medical practitioner. We held in that case that since the case had been completed, no further evidence ought to have been given.
The present case was not completed; the case on both sides had been closed. It only remained the addresses by Counsel on both sides. The question is, was it right for the Tribunal to have called witnesses in order to prove the guilt of the practitioner? It was apparent that the Tribunal did not think that the evidence before it was sufficient to establish the guilt of the practitioner at the time the case against him was closed. Counsel was always aware that the evidence of these two witnesses as to the date of the death of Mr Gilbert was material to the issue before the Tribunal, otherwise he would not have had them in court. Why were they not called at the time appropriate?
The Tribunal, in its judgment, sought to distinguish the present case from Denloye's case on the point that the case had been completed in Denloye's case and could not be re-opened, but that in the present case, there was still the addresses of Counsel on both sides and the case was not completed without the addresses. We do not see the difference in the two cases. At the close of the case of the defence, that was an end of the complaint before the court, and the only evidence which could be allowed, at the discretion of the court, was evidence of rebuttal if the accused person had given evidence. We are clearly of the view that in the present case the Tribunal had erred to have allowed evidence of the two witnesses or to have called this evidence itself in order to strengthen the case against the practitioner. We find support for our view in a case decided in the West African Court of Appeal in 1952. We refer to the case Dickson Ejukoleru v. Inspector-General of Police, 15 W.A. C.A. 161. In that case a magistrate convicted the accused person after he (magistrate) had called three more witnesses after the close of the case for the defence, and later convicted the accused. In the appeal which followed, the judge allowed the appeal and ordered a retrial. The accused person appealed further to the West African Court of Appeal. In its judgment, delivered by Jibowu, Ag. S.P.J. the court said:-
"It appeared to us that the learned magistrate did not consider the evidence before him at the close of the case for the defence sufficient to enable him to convict the appellant, hence he found it necessary to call three additional witnesses to strengthen the case for prosecution. The learned magistrate should, in the circumstances, have acquitted and discharged the appellant instead of calling more witnesses. We are satisfied that the learned judge rightly allowed the appellant's appeal and set aside the conviction, but he should, in our view, have acquitted the appellant as the magistrate ought to have done at the close of the case for the defence."
We feel bound, in the circumstances, to agree with the second submission made by Chief Williams.
We now come to the first submission. Although there is hardly any need to decide this for the purpose of this case, the frequency of Disciplinary Tribunals has compelled us to consider the point in this judgment. We must confess that we have read the charge over and over again and we fail to appreciate the gravamen of the complaint against the practitioner. Mr Ogundere, however, stated before the Tribunal that "the substance of the allegation, as contained in the charge, was that Mr Idowu, while an employee of the E.C.N. received a sum of £1,910 out of the compensation money due to the Ojora Chieftaincy family, a total of which was £14,000. It was paid to him by Mr Hakeem Habeeb who was the solicitor for the family." There is no allegation in the charge, and indeed no evidence, before the Tribunal, that Idowu occupied a position (e.g. Legal Adviser in respect of payments for compensations) in the Electricity Corporation of Nigeria which made it improper on his part to receive a cheque from Mr Habeeb, nor was it stated that the cheque was given for illegal or improper consideration. The charge certainly did not allege any misconduct on the part of Mr Idowu nor was there any evidence of such misconduct before the Tribunal. We think that the charge in cases of disciplinary actions of this nature should contain the misconduct complained of and it must be proved.
The Tribunal, we observe, took no evidence in relation to the charge. Evidence of two witnesses, about whom we shall have more to say anon, was however taken.
Instead of taking evidence from witnesses, the Tribunal relied on the Minutes of the Investigating Panel which were put in evidence and marked Exhibit 1. We have had untold difficulties in securing this record of proceedings (Exhibit 1). We must once again point out that all Exhibits tendered and admitted in evidence in any case must be kept by the court or Tribunal which hears the case for the statutory period and later to be sent up to this Court with other records of appeal, when there is an appeal.
The Minutes (Exhibit 1) show that the Investigating Panel had its first sitting on 11th July, 1968: it adjourned, after some hearing, to an unnamed date; it resumed again later on an unknown date and completed its sitting on an unrecorded date. The evidence before the Panel was not taken on oath; questions were put to some witnesses and their answers were recorded. The Disciplinary Tribunal when it sat, after reading out of the charge and after settling some procedural points put the Minutes of the Tribunal in evidence unsworn witnesses and this is what it is relied upon as evidence in the proceedings before it. After the case had closed as we pointed out earlier, the Tribunal decided to call the two witnesses to whom we have referred earlier in this judgment, either to disprove portion of the unsworn evidence or some statements made by Counsel. These two witnesses, namely, one Gilbert, an 18 year old son of the surveyor, Mr Gilbert (deceased) for whom the practitioner Mr Idowu was said to have been paid some money, and one Mr Shopade, a survey assistant to the said Mr Gilbert.
As we stated earlier, these two witnesses were the only witnesses sworn in the whole proceedings.
Now, the Tribunal has made much importance of the date of Mr Gilbert's death, namely 20th September, 1966, and that he had died before compensation was paid to the Ojora Chieftaincy family. It also found as a fact there was no plan submitted by any surveyor to E.C.N. on behalf of the Ojora family. In this connection the Tribunal in its decision stated as follows:-
"We must make it clear that we do not believe that Mr Idowu obtained the services of Mr Gilbert or any other surveyor in respect of the compensation claim. There is abundant evidence to this effect quite apart from the evidence as to the date of death of Mr Gilbert. Mr Okwechime, Assistant Land Officer of the E.C.N. said that no plan was submitted by the Ojora family. Moreover, the late Mr Gilbert had died since the 19th of September, 1966, whereas the earliest of the cheques concerned for £300 was drawn on 29th July, 1967 ..."
With respect, we fail to see the "abundant evidence" in the proceedings before the Tribunal that the services of Mr Gilbert were not obtained. There is no scintilla of evidence to this effect except that Mr Gilbert died in September 1966 and the earliest compensation paid out was in 1967. Certainly, it is common knowledge that compensation monies are not paid out for some time after acquisitions are made or advertised. We know in the courts that some take five years. The matter of this acquisition according to Exhibit 2 started as far back as 1965. If a surveyor was to be engaged, would he not have been engaged before 1966, and before Mr Gilbert's death?
The relevant portion of the decision of the Tribunal to which we have referred earlier, stated that Mr Okwechime said that no plan was submitted by the Ojora Chieftaincy family. Again, with respect, this is erroneous. The trend of Mr Okwechime's evidence (so-called) before the Panel was that an old plan was submitted, and when a new one was asked for it was never submitted. We record the questions and answers.
Question by the Panel: 'Did you know all the facts of this matter, since you dealt with it?
Answer: 'Yes. The solicitor to the Ojora family. Mr Habeeb, said that there was a plan prepared long ago. I then instructed our surveyor, Mr Aganga Williams, to plot out the area on the plan. The surveyor said that the plan produced to him was too old and outdated. I had no other plan in the file before it was lost. The Ojora family did not submit any plan.
Question: Is it usual for the E.C.N. to pay compensation in the absence of a plan?
Answer: Usually, we ask for plans from claimants to enable our surveyor to survey. However, in this case, our surveyor said the plan was too old and not useful.
Question: Who did the valuation?
Answer: I did the valuation. I based the compensation on the acreage of the plan submitted by our surveyor, Mr Aganga Williams.
From the above dialogue, it is clear that some sort of plan was submitted to E.C.N. but this plan, and it appears other plans also (possibly Mr Aganga Williams's plan), are all lost. For the Tribunal to assert that no plan was submitted at all, it was necessary to call Mr Aganga Williams to give evidence about the old plan submitted and that it was not made out by or submitted by Mr Gilbert. It is also clear, and we shall have occasion to refer to this later, that Mr Idowu the legal practitioner concerned in this matter had nothing to do with the valuation of land the subject matter of this acquisition.
A further perusal of the Minutes of the Investigating Panel (Exhibit 1) reveals that Mr Idowu, at the time of this acquisition, was the Assistant Secretary at the E.C.N. and Mr Atta was the Secretary and is responsible for legal advice. Since then Mr Idowu has become Assistant Legal Adviser. All this came from Mr Okwechime, who added that "there was no dispute in the matter of this acquisition, and so no legal matter of any kind was discussed."
We now come to consider the first submission by Chief Williams, namely that a legal practitioner cannot be punished, under the Act, for all misconducts, but only misconducts in a professional capacity or respect. The question we ask ourselves is, was Mr Idowu acting in any professional respect at the time of this acquisition? It was clearly stated that he took no part in this acquisition matter. Mr Okwechime stated that as Assistant Land Officer, he did the valuation and that no matter was referred for any legal advice. In fact there was no evidence that Mr Idowu would normally give legal advice; if anything, the evidence was to the contrary. From the evidence before the Tribunal we do not think he was acting in any professional capacity to secure the services of a surveyor. He might have misused his official position; and if it was alleged that he stole the money he received in any way, the Tribunal, at this stage, would not be the proper forum to try his conduct.
We fail to see that any case has been proved against Mr Idowu affecting his conduct in a professional capacity, and we cannot understand what the Tribunal meant when it stated in its decision that "Mr Idowu's conduct in entering into arrangement with his client's adversaries."
Now, the wording of section 7(a) of the Legal Practitioners Act deals with infamous conduct ... in a professional capacity. It provides:-
(a) A person whose name is on the roll is judged by the Tribunal to be guilty of infamous conduct in any professional respect."
It seems to us that in interpreting this enactment it is not enough that the practitioner be guilty of infamous conduct only, but it must be such conduct arising out of or pertaining to his profession.
In the case of Ex-Parte Meehan (1965) New South Wales (Australia) Report 30, where an enactment similar to our Section 7 (above) in relation to the conduct of a Medical practitioner was being considered by the court, in his judgment, Sugarman, J. at p. 35 of the report, said:-
"Consideration of the cases and of the provisions of the legislation in force in this State suggests that the only generalisation as to the meaning in that legislation of "infamous conduct in any professional respect" which can be attempted as capable of application to the varying situations which may arise is that it refers to conduct which, being sufficiently related to the pursuit of the profession, is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence."
We approve of this interpretation of the relevant section (7) under consideration, and cannot believe that it was ever intended that infamous conduct which has no relevance whatever to the profession of the professional before the Tribunal was ever contemplated.
There is one more point we must call attention to and which we feel in this matter has escaped the attention of the Tribunal. This is about the rules of evidence. Rule 10(2) of Rules made under the Legal Practitioners Act calls for strict adherence to the Evidence Act by the Tribunal. It states:-
"10 (2) In all proceedings before the Tribunal, the provisions of the Evidence Act shall apply, as they do in civil proceedings."
The absence of such rule 10(2) in the case of medical practitioners is worthy of note. We cannot say that the Tribunal in the present matter observed Rule 10(2) of the Rules under the Legal Practitioners Act.
For all these reasons, we are obliged to set aside the order of suspension for two years made by the Tribunal in this matter.
Appeal allowed: Order of Tribunal set aside.