(2007) 2 All N.L.R. 417

ONNOGHEN, JSC (DELIVERED THE LEADING JUDGMENT):- This is an appeal against the decision of the Legal Practitioners Disciplinary Committee on Petition No. BB/DCNB/021 delivered on the 7 October 2002 pursuant to the provisions of section 12(7) of the Legal Practitioners Act, Cap. 207 Laws of the Federation, 1990 as amended by the Legal Practitioners (Amendment) Decree No. 21 of 1994.

 

The appellant is a legal practitioner with a law firm in Abia State where he carries out his law practice. In the course of that practice his professional services were retained by the second respondent, Mrs Nwanna Awa Agwu, a businesswoman based in the Cameroon, in respect of the execution of judgment obtained in Cameroon for CFA20,000,000 against three fellow Nigerians namely Ebi Eme? Ume Ukpai and Uka Mbila Philip. An agreement evidencing the transaction was entered into by the appellant and the second respondent.

 

The appellant took steps to execute the foreign judgment at the High Court of Abia State, holden at Ohafia in the process of which he recovered only N25,000 out of the total judgment debt. The appellant discontinued the proceedings against the third defendant Uka Mbila Philip in circumstances which the second respondent considered controversial. The sum of N25,000 recovered was from fifa and sale of the movable property of the judgment debtors. The second respondent eventually lost confidence in the appellant's conduct of the case and consequently debriefed him but the appellant refused and or neglected to pay the second respondent the N25,000 recovered from the sale of movable assets of the said judgment debtors or any part thereof, in spite of repeated demands. At the end, the second respondent petitioned the office of the Chief Justice of Nigeria which petition was forwarded to the Nigeria Bar Association for investigation at the end of which the said Bar filed a complaint against the appellant with the first respondent on allegations of professional misconduct. The complaint, as reproduced by the appellant in the appellant's Amended Brief of Argument deemed filed by this Court on 16 November 2006 at page 6 thereof and relevant to the proceedings is, inter alia, that:-

 

". . . In his capacity as a Legal Practitioner for the Petitioner he recovered the sum of N25,000 in part settlement of judgment debt but refused to pay it over to the Petitioner."

 

At the conclusion of the hearing by the first respondent a decision was handed down on the 7 October 2002 in which the first respondent found the appellant guilty of infamous conduct in a professional respect pursuant to the provisions of section 11(a) of the Legal Practitioners Act, Cap. 207, Laws of the Federation, 1990 and suspended the appellant from the Bar with a direction that the appellant should not engage in practice as a legal practitioner for a period of one year effective from the 7 October 2002. The appellant is dissatisfied with that decision and has consequently appealed against same to this Court.

 

In the appellant's Amended Brief of Argument settled by learned Counsel for the appellant, Ubong Esop Akpan Esq. and deemed filed on 16 November 2006 which was adopted in argument of the appeal, the following four issues have been identified for the determination of the appeal:-

 

"(1)   Whether the first complaint against the appellant before the LPDC amounted to a crime (Ground 4).

 

(2)    Whether the LPDC proceedings were initiated by due process of law (Ground 3).

 

(3)    Whether the LPDC was in the circumstances of this case properly constituted when it made its finding of guilt against the appellant (Ground 1 and 2).

 

(4)    Whether the actual decision of 7 October 2002 was lawful, credible and sustainable. (Grounds 5, 6 and 7)."

 

On the other hand, learned Counsel for the first respondent, Dele Oye Esq. in the first respondent's Brief of Argument deemed filed on 27 April 2006 identified two issues for determination. These are as follows:-

 

"(a)   Whether the decision of this Court in MDPDT v Okonkwo (2001) 7 NWLR (Part 711) 206 is applicable in the circumstances of this case, even though there was an allegation of misconduct (against the appellant) which would appear to have criminal implications.

 

(b)    Whether in the circumstances of this case there had been a breach of the appellant's right to a fair trial capable of vitiating the hearing and determination reached on the allegation of professional misconduct raised against the appellant herein."

 

Looking at the second respondent's Amended Brief of Argument deemed filed on 27 April 2006 settled by N.I. Quakers Esq., of Counsel the following three issues have been identified for determination:-

 

"i. Whether the finding of the LPDC on the second respondent's petition amounted to a finding of guilt for the offence of stealing?

 

ii. Whether there is any feature in the proceedings before the LPDC, especially the absence of a formal charge and the composition of the LPDC on the day it delivered its ruling, that amounted to a denial of fair hearing to the appellant to invalidate the decision of the LPDC finding the appellant guilty of infamous conduct in a professional respect?

 

iii. Whether the decision being appealed is supported by the weight of evidence before the LPDC?"

 

In arguing appellant's Issue No. 1 learned Counsel for the appellant O.E. Akpan Esq. referred the court to pages 2, 23 and 26 of the Record where the first complaint against the appellant is stated and submitted that three elements appear from the complaint and that these are:-

 

"1st, that E.U. Ndukwe acted as Legal Practitioner to the petitioner.

 

2nd, that E.U. Ndukwe, in that capacity recovered and held N25,000 on behalf of the petitioner.

 

3rd, that E.U. Nkdukwe refused to pay the N25,000 over to the petitioner?" and that they allege that the appellant came into possession of N25,000 with the initial consent of the petitioner, but that he thereafter dealt with that sum:-

 

(a)    in a manner inconsistent with the petitioner's title to it? and

 

(b)    in a manner aimed at depriving the petitioner permanently of the use of her money by refusing to pay it over? that the first complaint against the appellant therefore alleges the crime of stealing by conversion under sections 383 and 390 of the Criminal Code, Oshinye v Police (1960) 5 FSC 105? Adewusi v Queen (1963) 1 All NLR 316 at 319? Sagoe v Queen (1963) 1 All NLR 290 at 294-295? R v Orizu (1954) 14 WACA 455? R v Williams [1953] 1 All ER 1068? R v Cockburn [1968] 1 All ER 466.

 

Referring to the case of Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) 7 NWLR (Part 711) 206 at 237-238 learned Counsel submitted that if the test stated therein is applied to the facts of this case the facts will not support a charge in a court of law for which the appellant would have been found guilty under sections 383(1) (2)(a), (b) and (f ) and section 390(c) or 390(9) of the Criminal Code? that the first respondent had no jurisdiction to try the first complaint since that complaint charged the appellant with the criminal offence of stealing by conversion covered by section 383 and 390 of the Criminal Code and relied on Garba v University of Maiduguri (1986) 1 NWLR (Part 18) 550.

 

On his part, learned Counsel for the first respondent submitted that the decision of this Court in MDPDT v Okonkwo (supra) and similar decisions which compel the trial of criminal allegation by a court does not apply in the circumstances of this case. Learned Counsel referred to the testimony of the appellant on record and stated that the appellant admitted still having the money he collected on behalf of the second respondent in his possession and submitted that having clearly admitted the unjustified retention of client's funds, the appellant cannot be heard to contend that he ought to have been tried before a court of competent jurisdiction before facing the first respondent? that where there is an admission of the particulars of a criminal allegation the matter need not be referred first to a court for trial, relying on Dangote v C.S.C. Plateau State & others (2001) 9 NWLR (Part 717) 132 at 159 and that where the allegation is substantially of a professional misconduct in character it need not be referred to a court of law first, relying on Alalade v Accountants Disciplinary Tribunal of ICAN (1975) All NLR 136? Okike v LPDC (No. 2) (2005) 7 SC (Part 111) 75 at 96? sections 10(1)(b) and 11(1) of the Legal Practitioners Act, Cap. 207, Laws of the Federation, 1990.

 

On his part, learned Counsel for the second respondent in the second respondent's Amended Brief deemed filed on 27 April 2006 and adopted in argument of the appeal, submitted that the submission of Counsel for the appellant on this issue is misconceived and that the cases of Denloye v Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 at 312? Garba v University of Maiduguri (1986) 1 NWLR (Part 18) 550 and MDPDT v Okonkwo (2001) 7 NWLR (Part 711) 206 at 237 are inapplicable to the facts and circumstances of this case in that the complaint of the second respondent did not suggest an allegation of crime neither did the petition of the second respondent suggest the commission of a crime by the appellant. Learned Counsel referred to the letter under the hand of the Chairman of the Committee at page 2 of the Record and stated that it contains only allegation of misconduct? that there is a difference between a sanction for withholding of money recovered by a legal practitioner for a client and the offence of stealing and that infamous conduct in a professional respect is viewed from the norms of the legal profession? that since the appellant came upon the money in question lawfully and was never alleged to have spent it at his will or misappropriated same, his liability for infamous conduct was definitely not based on an allegation of commission of a crime of stealing and conversion under section 390 of the Criminal Code as argued by learned Counsel for the appellant. Arguing further, learned Counsel submitted that the submission by the appellant at page 42 of the Brief as to whether (a) the petitioner demanded for her money to be returned? (b) the appellant refused to accede to a demand for return of the money?" as well as the answers supplied therein removed the case from stealing by conversion? that the case of MDPDT v Okonkwo (supra) at 235 cited and relied upon by Counsel for the appellant is distinguishable from the facts of this case in that the court held that where infamous conduct cannot be established without proving facts that would amount to an offence covered by the Criminal Code, a disciplinary tribunal should yield to the criminal courts established for the trial of such offence and that the Okonkwo's case eventually decided that the offence with which Dr Okonkwo was charged did not come under the purview of the criminal code.

 

The simple question that needs an answer in the issue under consideration is whether the complaint against the appellant amounts to an allegation of the commission of a crime of stealing by conversion under the Criminal Code as contended by learned Counsel for the appellant. The complaint is simply that the appellant:-

 

". . . while acting as legal practitioner for the petitioner recovered the sum of N25,000 in part settlement of judgment debt but refused to pay it over to the petitioner . . ."

 

Learned Counsel for the appellant has referred the court to sections 383(1), (2)(a), (b) and (f ), 383(3) and 390 of the Criminal Code as making provisions grounding the complaint of stealing by conversion thereby rendering the complaint against the appellant criminal in nature and deny the first respondent, upon decided authorities, of the jurisdiction to entertain the same without a competent court first determining the criminal aspect of the complaint. The question then is what do the said sections of the Criminal Code provide?

 

Section 383(1):-

 

"A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing:-

 

(2)    A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents:-

 

(a)    an intent permanently to deprive the owner of the thing of it?

 

(b)    an intent permanently to deprive any person who has any special property in the thing of such property?

 

(f )    in the case of money? an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.

 

(3)    The taking or conversion may be fraudulent although it is effected without secrecy or attempt at . . ."

 

From the above provisions, it is very clear that what is proscribed is the act of dealing with goods or property which lawfully comes into the possession of the person in a manner inconsistent with the right of the true owner provided that it is also established that there is an intention on the part of the defendant or accused in so doing to deny the owner's right or to assert a right which is inconsistent with that of the owner. Thus the conversion must be to the use of the person converting or to the use of any other person with intent to permanently deprive the owner of the goods, and in the case of money there must exist the intent to use it at the will of the person who converts it, notwithstanding the fact that he intends to repay same to the owner on a later date. In the instant case, the facts and circumstances do not even suggest that the appellant intended to use the money recovered on behalf of the second respondent neither has it been alleged that the appellant spent the money so recovered nor withheld the money with the intention of spending same.

 

In fact, the appellant contends that the second respondent never demanded for the money in his possession. The question is whether the appellant, a legal practitioner can be said to have ever entertained the slightest thought of being accused of stealing by conversion when he maintained throughout that the second respondent never demanded for the money in his possession. I hold the view that the complaint against the appellant speaks for itself and it is simply that the appellant was being accused of infamous conduct in a professional respect and not of the commission of any crime let alone the offence of stealing by conversion. It should also be noted that throughout the trial the appellant never raised an objection to the complaint being of a criminal nature or pleaded to the jurisdiction of the first respondent to hear his matter.

 

In any event, what was the reaction of the appellant to the complaint of the second respondent? It is very clear from the Record that the appellant admitted receiving on behalf of the second respondent by way of part payment of execution of judgment the sum of N25,000 which he failed to pay over to the second respondent. Now, granted that I am wrong in holding that the complaint against the appellant does not charge him with the commission of the offence of stealing by conversion, which I very much doubt, can it still be said that the matter ought first to have been referred to and settled by a court of competent jurisdiction before disciplinary proceedings can be commenced against the appellant? The relevant law is as settled by this Court in the case of Dangote v C.S.C. Plateau State (2001) 9 NWLR (Part 717) 132 at 159 per Karibi-Whyte, JSC, inter alia, as follows:-

 

"The contention of the appellants is that even on the facts respondents should have waited for the criminal prosecution of the appellant before taking any disciplinary action arising from the criminal offences alleged against him. The decisions of F.C.S.C. v Laoye (supra)? Garba v University of Maiduguri (supra) and UNTHMB v Nnoli (1994) 8 NMLR (Part 363) 376 were cited and relied upon. These are decisions where the allegations of the commission of criminal offences have been denied and disputed. In such cases the burden rests on the accuser to prove the commission of the alleged criminal offences beyond reasonable doubt. this burden can only be discharged by a court established by law and constitutionally vested with powers to exercise criminal jurisdiction. The decisions have not considered and have not decided the situation where the administrative body has proceeded to exercise its jurisdiction to impose sanctions where the person accused has admitted the commission of criminal offences.

 

It cannot be disputed that where there is an admission of the commission of the criminal offences alleged the question of establishing the burden on the accuser to establish the commission of the offences does not arise. Accordingly, the question of violating the rights of the accused is not an issue. It seems too preposterous to suggest that the administrative body should stay the exercise of its disciplinary jurisdiction over a person who had admitted the commission of the criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before disciplinary proceedings should be taken. I do not think the provision of the law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrongdoings. It is established law that after a plea of guilty by the accused before the court exercising jurisdiction in respect of criminal offences, the court must formally proceed to conviction without calling upon the accuser to prove the commission of the offence by establishing the burden of proof required by law - see section 218 of the Criminal Procedure Act? see also R v Wilson (1959) SCNLR 462? (1959) 4 FSC 175. This is because the admission of guilt on the part of the accused had satisfied the required burden of proof.

 

In the instant case there is nothing precluding the respondents from resorting to the relevant necessary administrative machinery and of imposing the appropriate applicable sanctions after the admission of the appellant of the commission of the offences of conspiracy and theft alleged against him had been established." (Emphasis supplied.)

 

The above decision of this Court clearly establishes the principle that where a charge or complaint against a person before an administrative tribunal or body doubles as a crime under the Criminal Code and the person accused has admitted committing the offence or offences the administrative tribunal or body has the jurisdiction to proceed to sanction the erring officer without first referring the matter for trial and determination before a court of competent jurisdiction because the admission of guilt discharges the burden of proof placed by law on the accuser. This clearly is an exception to the general rule that where an allegation against a person before an administrative tribunal is also an offence under the criminal code, the administrative tribunal cannot hear the complaint except the criminal aspect of same has been heard and determined by a court of competent jurisdiction as decided by this Court in a number of cases including Garba v University of Maiduguri (supra) etc.

 

That apart, by the provisions of section 10 of the Legal Practitioners Act, the first respondent was established to exercise and does exercise disciplinary jurisdiction over members of the Legal Profession. The first respondent has no jurisdiction to try criminal cases neither has it ever pretended to have such jurisdiction by even attempting to exercise any. Therefore in whatever angle one looks at the issue under consideration, it must be resolved against the appellant and I hereby order accordingly.

 

On Issue No. 2, learned Counsel for the appellant referred the court to the Legal Practitioners (Disciplinary Committee) Rules, Legal Notice No. 69 of 1965 as Amended by Statutory Instrument No. 17 of 1994 paragraph 4 thereof and submitted that the proceedings of the first respondent in the instant case ought to have been originated by a charge formulating the offences charged and notice of which ought to have been served on the appellant before the trial, but that the instant proceeding was not so initiated and therefore not in accordance with due process, learned Counsel further submitted? that the provisions of paragraph 4 of S.I. No. 17 of 1994 should be interpreted as imperative particularly as the procedural provisions is for the benefit of the person accused of an offence, relying on the Secretary of State for Defence v Warn (1968) 3 WLR 609 at 614? Okegbu v State (1979) 11 SC 1 at 51-52? that failure by the first respondent to give a charge to the appellant with sufficient information of the offence for which he was to be tried offends appellant's right as enshrined in section 36(a) of the 1999 Constitution. Learned Counsel then stated that:-

 

"The charge may not conform strictly with the form prescribed under the Criminal Procedure Law, but it must be a charge framed in such a way that it discloses to the person to be tried, full details of the essential elements of the offence which he is to defend himself against. For the main purpose of a charge is to give the person accused of committing an offence notice of the case against him. (See Fard v IGP (1964) 1 All NLR 6 at 7-8)."

 

Learned Counsel further submitted that in the following cases, formal charges were framed:-

 

LPDC v Fawehinmi (1985) 2 NWLR (Part 7) 300? Denloye v Medical and Dental Practitioners Disciplinary Tribunal (1968) 1 All NLR 306? Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) 7 NWLR (Part 711) 206 and that failure by the first respondent to present the appellant with a formal charge before the trial was a fundamental breach of the appellant's right to fair hearing particularly as he was found guilty of an offence which was not contained in a charge brought to his notice and the essential ingredients of which were never disclosed.

 

On his part, learned Counsel for the first respondent submitted that as a domestic tribunal, the first respondent is structured with some form of latitude and as such by virtue of rule 9 of the Legal Practitioners (Disciplinary Committee) Rules, Cap. 207, Laws of the Federation, 1990, the first respondent has the capacity to determine its procedure subject to the caution that such procedure meets the demands of natural justice. Learned Counsel then submitted that the appellant had adequate information, knowledge and particulars of the charge raised against him in the proceedings in question. Referring to page 22 of the Record, Counsel stated that it reveals the allegations made by the Nigerian Bar Association against the appellant at the commencement of the proceedings and the appellant duly responded by denying the allegations? that the appellant heard and understood the allegations against him and proceeded with the trial and cannot now be heard to complain that a formal charge was not brought against him. Citing and relying on the case of Okike v LPDC (No. 2) (supra) learned Counsel submitted that the word "charge" should be construed to mean a process by which all the essential elements of an allegation are brought to the notice of the respondent. Counsel referred the Court to the decision on similar facts in the case of Okike v LPDC (No. 2) (supra) at page 93, 113 and 116 thereof and submitted that the decision of this Court in LDPC v Fawehinmi (supra) and Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (supra) are inapplicable to the facts of this case.

 

On his part, learned Counsel for the second respondent submitted that an allegation of denial of the right to fair hearing must not be made omnibus but on a firma terra and that from the facts, the appellant was given adequate time and ample opportunity to defend himself. Referring to page 10 of the appellant's Brief, learned Counsel stated that the appellant therein admitted that LPDC took evidence from both parties and adjourned proceedings to 31 July 2002 for judgment? that the appellant does not deny that the petition containing certain allegations was brought to his attention neither has he claimed not to have understood the allegations therein? that the appellant duly responded to the allegations. Referring to section 36(6) of the 1999 Constitution, learned Counsel submitted that the appellant not having been charged with a criminal offence cannot properly take refuge under the said section and that all formalities associated with formal criminal trials do not apply to quasi-judicial proceedings before Disciplinary Tribunals such as the first respondent. On the other hand, learned Counsel submitted that section 36(6) of the 1999 Constitution does not prescribe a format through which an accused person should be informed promptly and in detail of the nature of his offence and that the first respondent does not apply the provisions of the Criminal Procedure Act or Criminal Code and cannot be expected to draft a formal charge after an accused had been promptly informed in the language he understands of the nature and details of the allegations against him? that no where has this Court held that a denial of fair hearing would occur where a formal charge is not drafted in a proceeding before the first respondent and urged the Court to resolve the issue against the appellant.

 

Section 36(6)(a) of the 1999 Constitution provides thus:-

 

"Every person who is charged with a criminal offence shall be entitled to - be informed promptly in the language that he understands and in detail of the nature of the offence."

 

On the other hand, paragraph 4 of the Statutory Instrument No. 17 of 1994 provides thus:-

 

"4.    References of case to Tribunal by Panel.

 

In every case where in pursuance of section 10(1) of the Act the Disciplinary Committee is of the opinion that a prima facie case is shown against a Legal Practitioner, the Nigerian Bar Association shall forward a report of such a case to the secretary together with all the documents considered by the Nigerian Bar Association, and a copy of the charges on which the Nigerian Bar Association is of the opinion that a prima facie case is shown."

 

It is not disputed that the first respondent is not a court of law exercising jurisdiction in criminal matters under the Criminal Code and applying the provisions of the Criminal Procedure Act. It is conceded by both parties that the first respondent is an Administrative Tribunal or body exercising quasi-judicial functions or jurisdiction. I agree with the learned Counsel for the first respondent that as an administrative body or tribunal, the first respondent possesses the capacity to determine its procedure by virtue of rule 9 of the Legal Practitioners (Disciplinary Committee) Rules, Cap. 207, Laws of the Federation, 1990 and that the said "capacity is restrained only by the caution that such procedure meets the demands of natural justice and in accordance with the Evidence Act."

 

It is principally in that light that one can properly appreciate the provisions of section 36(6)(a) of the 1999 Constitution which is designed to apply not only to formal courts exercising criminal jurisdiction but also to police officers effecting arrest of a suspect, administrative tribunal or bodies or generally speaking judicial or quasi-judicial bodies. In fact the current trend is to apply the principles of fair hearing or natural justice to purely administrative bodies which are now expected to have the duty to act fairly in the exercise of their duties as such bodies particularly where their decisions affect the rights and obligations of people. When viewed in that light it becomes very clear, and I hereby hold that the word "charged" as contained in the said section 36(6)(a) of the 1999 Constitution is not limited to a formal charge as recognised in the Criminal Code and the Criminal Procedure Act and applied by courts of competent jurisdiction but extends to complaint or information as to the offence with which a person is accused delivered to the person so accused or charged in a language that he understands with sufficient details of the alleged offence. The information may not necessarily be in writing as when a police officer, in the course of his duties, arrests a person for an offence. He is duty bound to inform him of the "charge" for which he stands arrested in a language that he understands and the detail of the nature of the offence. You may call it a caution if you wish. It is usually on that basis that the suspect is cautioned before he volunteers a statement in answer to the "charge" or allegations against him. What later takes place in the court of law where a formal charge is drafted, filed and a copy served on the accused to which he formally pleads either guilty, or not guilty is a formality required by the specific provisions of the Criminal Procedure Act, which in this case does not apply to the first respondent.

 

At page 23 of the Record, the Nigerian Bar Association laid out the allegation against the appellant before the first respondent as follows:-

 

"The complaint against the respondent, E. Ndukwe, Esq. is that in his capacity as legal practitioner for the petitioner he recovered the sum of N25,000 in part settlement of judgment debt but refused to pay it over to the petitioner. The respondent was alleged while acting as legal practitioner for the petitioner to have compromised the case of his client in breach of his instruction."

 

At the said page 23, the appellant responded to the charge thus:-"I deny all the allegations."

 

It is very clear from the Record that the appellant never protested to the mode of charging him before the first respondent neither has he complained that he did not understand the charges against him which, from the passage quoted above, are two:-

 

(a)    that he, as legal practitioner representing the petitioner recovered N25,000 as part payment of judgment debt but refused to pay it over to the petitioner? and

 

(b)    compromising the case of his client?

 

neither did he object to the hearing of the charges against him without a formal charge or charges being filed. The appellant rather went ahead and testified before the first respondent and participated in the trial fully but turns around to complain about the absence of a formal charge before the first respondent. I do not think that he should be allowed to do so, granted, without conceding, that a formal charge was needed to be drafted and filed in the matter. It should also be noted that prior to the proceedings before the first respondent, a copy of the petition of the second respondent was duly served on the appellant who even had to appear before the Hon. Attorney-General of Abia State on the same petition of the second respondent, so he knew all along the complaints against him by the second respondent. He does not say that what the Nigerian Bar Association charged him with before the first respondent is different from the complaint of the second respondent neither has he complained that the first respondent found him guilty of a different offence from what he was petitioned against.

 

In any event, this Court, on similar relevant facts, decided in Okike v L.P.D.C (No. 2) (supra) at pages 93, 113 and 116 as follows:-

 

"In my view, the word 'charges' used under the rule does not mean and cannot mean formal charges in a criminal trial before a criminal court . . . Therefore what needs to be known to the legal practitioner concerned is the substance of the allegations against him before the proceedings started: The precise nature of the allegations against the appellant were communicated to the appellant, he was well aware of the complaints against him. The appellant had fair notice of the allegations against him. Where the allegations contained in the petition before the disciplinary tribunal, as opposed to criminal tribunal, contains all the essential elements and enough information, it is not necessary to make reference to particular breaches of the rules as in a criminal case - See MDPDT v Okonkwo (supra) and Idowu v LPDC (1962) All NLR 128 as it will be necessary in a criminal trial. In my humble opinion, the absence of a formal charge did not occasion any miscarriage of justice, the appellant was well aware of the complaint against him."

 

Per Musdapher, JSC.

 

At page 113, Ejiwunmi, JSC expressed a similar opinion in the following words:-

 

". . . the reference to 'charges' in the above provisions should not be read to mean that only a formal charge or charges would suffice to bring home to the person concerned the complaint brought against that person . . . It is my view that it will amount to undue technicality to contend that because the word 'charge' was not used, the allegation against the appellant was not brought to his knowledge and therefore he was not made aware of the complaint against him. In this context, it must be borne in mind that the proceedings before the respondent is not expected and indeed not required to be conducted as a full scale criminal trial. If that then be the position, the word 'charge' read in that context is simply a 'complaint' that discloses a prima facie case that deserves to be investigated and determined by the respondent."

 

My learned brother, now of blessed memory, Pats-Acholonu, JSC at pages 115-116 of the report put the matter in his characteristic graphic way thus:-

 

". . . the characteristics or feature of a charge do not lie in procedural formalism but rather in the context of the unrighteous act being brought to the knowledge of the person so indicted in good lucid and really understandable English as in the present case. In the case before us now, the charge as I choose to call it, the document was couched in simple prose and he was requested to appear before the Peers of his profession. It is not an indictment wearing a criminal garb. The issue before us is as to whether the act of the appellant constituted a gross misconduct to affect his status in the profession of the Bar. Therefore to latch or clutch on the defence of improper charge laid, shows the inability of the appellant to fully grasp the nuance associated with the procedure in handling his case by the respondents."

 

From the statement of the law as handed down by this Court in the above passages, I have no hesitation in holding that having regard to the facts and circumstance of this case, the appellant has not satisfied this Court that the absence of a formal charge in the proceedings before the first respondent resulted in any miscarriage of justice calling for our intervention. On the contrary, I agree with the above decision of this Court that under the rules of the first respondent a formal charge need not be drafted and filed against any legal practitioner "charged" with offences relating to professional misconduct provided the complaints against him have been sufficiently brought to his notice in the language he understands with sufficient details of the offences alleged, as was done in the instant case. I therefore resolve the second issue also against the appellant.

 

On Issue No. 3, learned Counsel for the appellant submitted that the decision of the first respondent in respect of the instant case does not qualify as a legal decision and/or in the alternative one of those who participated in the delivery of the judgment but did not hear evidence renders the proceedings unlawful and thereby liable to be set aside. Referring the court to the Record, learned Counsel stated that the judgment was delivered by the Chairman of the first respondent and was signed by him only? that no other member was recorded as agreeing with the judgment, nor signed the judgment along with the Chairman in gross violation of paragraph 16(b) of the Legal Practitioners (Disciplinary Committee) Rule? that by the said paragraph 16(b) it is the Committee itself, not an individual member, that can give judgment and direction of the type contemplated therein and that a pronouncement by only one member is not sufficient for the purpose? that since the Committee is comprised of 11 persons and there is no provision for quorum but by the provision of section 27(1)(a) of the Interpretation Act, Cap. 192 Laws of the Federation, 1990 the first respondent can act by at least 6 members of those persons, but that they did not sign the judgment.

 

In the alternative Counsel submitted that since the judgment was delivered jointly with a person who did not participate in the hearing of the matter, the judgment is invalid? relying on Adeigbe v Kusimo (1965) 1 All NLR (1990) Reprint) 260 at 263 learned Counsel stated that the reasons stated in that case do not avail the respondents in the instant appeal and urged the Court to resolve the issue in favour of the appellant.

 

On his part, learned Counsel for the first respondent submitted that the first respondent was properly constituted at all times material to the facts and circumstances of the case? that the complaint of the absence of a member of the panel that heard the matter at the delivery of the judgment cannot in any way impeach the proceedings provided the tribunal did form a quorum at the time of delivery of the judgment? that there were five consistent members of the panel that heard the evidence and delivered the judgment and that there is no evidence on the face of the Record that Mr Nwanodi was involved in the delivery of the judgment particularly as he neither signed the judgment or directions nor participated in its reading and that the mere erroneous reflection of his name on record cannot be interpreted to mean that he actually participated in the act? that the decision delivered by the Chairman was already deliberated upon by all the members prior to its delivery by the Chairman who was mandated to sign the decision. Learned Counsel further submitted that the appellant having admitted that Mr Nwanodi neither heard evidence nor subscribed to the directions cannot in the same breath contend that the mere presence of Mr Nwanodi should nullify the proceedings as a party cannot approbate and reprobate, relying on Ude v Nwara (1993) 2 NWLR (Part 278) 638. Learned Counsel then cited and relied on the dictum of Ademola? CJN in Adiegbe v Kusimo (supra) at 264 and submitted that a mere variation in the composition which does not affect the substance of the inquiry cannot touch on the competence of the directions particularly as the name of Mr Nwanodi was erroneously included in the Record.

 

On the sub-issue of quorum, learned Counsel for the first respondent referred to Item 1 of the Second Schedule of Cap. 207 Laws of the Federation, 1990 and submitted that the quorum of the committee is five, three of whom shall be the Chairman, any justice of the Court of Appeal? any two Judges or two Attorneys-General or four members of the Nigerian Bar Association? that there were six members present at the hearing while five members were present at the delivery of the decision? and urged the court to discountenance the argument on quorum.

 

On his part, learned Counsel for the second respondent submitted that the presence of Mr Nwanodi at the delivery of the judgment did not invalidate the findings of the first respondent, particularly as the first respondent is not a court, properly so called? that once the first respondent had reached a decision in writing which was pronounced in public in accordance with rule 12 of the LPDC Rules, it is valid and binding and that the presence or absence of any member who sat and heard a case does not affect the collective decision of the first respondent and urged the court to resolve the issue against the appellant.

 

It must be noted that the appellant filed no reply brief in his action. It therefore means that learned Counsel for the appellant concedes the contention of the learned Counsel for the first respondent that by the combined effect of Item 1 of the Second Schedule to Cap. 207 Laws of the Federation, 1990 as amended by section 15(a) and (b) of Decree No. 21 of 1994 read together with section 11(2) of Decree No. 21 of 1994 the quorum of the Disciplinary Committee shall be five persons three of whom shall be as stated in the enactment. It is clear from page 23 of the Record that six and five persons as members were present at the hearing and judgment and that they all belong to the class of persons provided in section 11(2) of Decree No. 21 of 1994. From the above, it is my considered view that the argument of learned Counsel for the appellant on the issue of quorum is misconceived and is consequently discountenanced by me.

 

On the alleged participation of Mr Nwanodi at the delivery of the judgment when he did not participate in the hearing of evidence, learned Counsel for first respondent had submitted that the inclusion of the name of Mr Nwanodi in the record of that day is an error committed by the typist who inadvertently included that name particularly as the panel in which Mr Nwanodi is a member held proceedings soon after the delivery of the judgment in question. As I stated earlier in this judgment there is no reply brief by the appellant.

 

In any event, the status of the first respondent as an administrative tribunal or body must be constantly kept in focus so as not to confuse its proceedings and judgments with those of the regular courts constituted by three or more members just as the Court of Appeal and say, the Supreme Court where each member of the panel that heard a particular case must render his own opinion or judgment/decision in writing. Even there, all those who sat and heard the case need not be present when the judgment is read in court. It has to be noted that learned Counsel for the appellant has not accused Mr Nwanodi of being a signatory to the judgment delivered that day, in fact he concedes that he is not a signatory thereto. It is equally not the case of the appellant that the decision of the first respondent was not deliberated upon by the members of the panel before it was arrived at and reduced into writing by the Chairman who signed and read same in public. It is important to note that at the delivery there of five of the six members who heard evidence were present and none dissented nor expressed a contrary opinion. It is very clear therefore that the fact that the other members did not express a contrary opinion confirms their agreement with the judgment as read by the Chairman of the panel and I therefore come to the irresistible conclusion that the decision of the first respondent in the circumstances of the case cannot be vitiated.

 

In the case of Adiegbe v Kusimo (supra) at 264, Ademola, CJN stated the position thus:-

 

"The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the persons who gave it had not seen and heard all the witnesses they could not appraise the evidence as a whole and decide the facts properly . . . We are therefore of the opinion that variations in the Bench does not make a judgment a nullity. They may make it unsatisfactory and it may have to be set aside for this reason but whether they do or not depends on the particular circumstances of the case."

 

Applying the decision of this Court (supra) to the facts of this case I hold the firm view that the facts and circumstances of this case do not warrant the setting aside of the decision of the first respondent, the same having been found to be in very substantial compliance with the relevant law and rules applicable to the proceedings of the first respondent who is not a regular court of law but an administrative tribunal or body with power to decide on its own procedure and lay down rules for the conduct of inquiry regarding discipline within the legal profession. No miscarriage of justice is apparent on the face of the Record by the erroneous reflection of the name of Mr Nwanodi in the panel of the first respondent that delivered the decision of the first respondent in this matter? neither has learned Counsel for the appellant demonstrated any miscarriage of justice resulting therefrom in his argument on the issue before this Court. I therefore resolve the issue against the appellant.

 

On Issue No. 4, learned Counsel for the appellant submitted that the judgment of the first respondent which purports to punish the appellant does not reflect analysis and consideration of issues arising in the matter? that the first respondent "manufactured" evidence for the second respondent and found the appellant guilty of an offence not alleged against him nor disclosed in the complaint before it. Referring specifically to the judgment learned Counsel stated that it spans only two and a half pages and that the findings of facts were made without analysing the facts. Learned Counsel admitted that the first respondent summarised the facts before it but stated that the said facts were not analysed, or appraised or evaluated? that it is not enough for a court to summarise or recite or restate evidence, relying on Imeh v Okogbe (1993) 9 NWLR (Part 316) 159? Mogaji v Odofin (1978) 4 SC 91 at 93-95? Atoyebi v the Governor of Oyo State (1994) 5 NWLR (Part 344) 290? that a tribunal charged with the performance of judicial functions should normally state reasons for its conclusions and that to decide without reason leaves room for arbitrariness, relying on Agbanelo v UBN Ltd (2000) 7 NWLR (Part 666) 534 at 547-557.

 

Referring to the finding of the first respondent at page 27 of the Record learned Counsel submitted that the finding that the second respondent had not been paid any amount by the appellant despite her repeated demands or that the second respondent came to Nigeria from Cameroon for the purpose is utterly false as it is not supported by evidence on record.

 

Referring to page 26 of the Record particularly the portion that sets out the complaint against the appellant, learned Counsel submitted that the first respondent did not make any specific finding of fact to the effect that the petitioner demanded for her money to be returned? or that the appellant refused to accede to the demand? particularly as it is the duty of the court to consider and make relevant findings on the issues placed before it, relying on Udengwu v Uzuegbu (2003) 9 MJSC 70 at 82? that if the first respondent had been clear in its mind about what it was considering, it would have been apparent that there was no evidence to found a case of prior demand for N25,000 and an alleged refusal by the appellant to pay? that the finding of the first respondent of "failure to pay over money" to the second respondent was not the basis of the complaint before it particularly as the words "failure" and "refusal" are not identical in meaning? that the first respondent's finding that the appellant was guilty of infamous conduct suffers from the following defects:-

 

(a)    it was based on a snappy short cut decision?

 

(b)    not one tenable reason was tendered by the LPDC for the finding?

 

(c)    the LDPC did not even pretend that it had subjected the evidence to any type of analysis?

 

(d)    the finding of failure to pay money is different from the complaint of refusal to pay the money?

 

(e)    no evidence of demand for refund and or refusal to accede to the demand existed on record?

 

(f )    the infamous conduct was therefore not proved and urged the court to resolve the issue in favour of the appellant and allow the appeal.

 

On his part, learned Counsel for the first respondent's reaction to Issue No. 4 is as argued in his Issue No. 1 in which he submitted that the appellant admitted the unjustified retention of the money in question and was therefore properly found liable by the first respondent? that the appellant did confirm that the second respondent had prior to the filing of petition against him dragged the appellant before the Attorney-General of Abia State seeking to collect her money.

 

In reacting to the issue, learned Counsel for the second respondent submitted that an Appellate Court is usually reluctant to upset a finding of fact made by a trial court which had the opportunity of listening to witnesses and observing their demeanour while testifying and that evaluation of evidence and the ascription of probative value are the primary functions of the trial court, which saw, heard and assessed the witnesses, and submitted that there is nothing on record to show that the finding of the first respondent is perverse and relied on the case of Oduwole v Aina (2001) 17 NWLR (Part 741) 1 at 47? Udengwu v Uzuegbu (2003) 13 NWLR (Part 836) 36 at 156 and Nwaezema v Nwayieke (1990) 3 NWLR (Part 137) 230 at 239.

 

Learned Counsel then submitted that the first respondent properly evaluated the evidence before coming to its decision and that this Court cannot in the circumstance intervene and urged the court to resolve the issue against the appellant and dismiss the appeal.

 

The law remains that an Appellate Court is reluctant to upset a finding of fact made by a trial court which had the opportunity of listening to witnesses testify and observing their demeanour and that evaluation of evidence and the ascription of probative value thereto are the primary functions of a trial court which saw, heard and assessed the witnesses. Where a trial court clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not the business of an Appellate Court to substitute its own views of the facts for those of the trial court. It is only where the trial court is proved to have abdicated this function or in carrying out the function makes an unsound finding that an Appellate Court can justifiably step in to do so or set aside such unsound finding for being perverse. (See Oduwole v Aina (2001) 17 NWLR (Part 741) 1 at 47 and Udengwu v Uzuegbu (2003) 13 NWLR (Part 836) 36 at 156).

 

From page 24 of the Record the second respondent testified, inter alia:-

 

"The respondent got the Cameroun judgment registered and proceeded to enforce it. Some of the movable properties of the judgment debtors were sold but the long and short of the matter was that the respondent never paid to me any amount out of the money he recovered from the judgment debtors. I had to come from the Cameroun (sic) to Nigeria several times but the respondent did not pay any sum of money to me . . ."

 

Under cross-examination by the appellant, the second respondent stated thus:-

 

"The total money which you told me you collected was about N25,000. The Assistant Chief Registrar of Abia High Court Mr Morgan Ubiadah said that the money had been paid to you . . . It is true that you and I had appeared before a panel headed by Attorney-General, Abia State over the matter . . . You told me to go back to Cameroun (sic). I did. When I came back nothing was still paid to me."

 

After the second respondent had been cross-examined by the appellant, the second respondent closed her case and the appellant opened his case by tendering and relying on his reply to the petition of the second respondent dated 26 June 2001 and added that "the amount so far paid to me by the Registrar is less than N25,000. There is still a balance of N5,000 unpaid till today . . . I still have N18,000 in my hand which I have not paid to her . . ."

 

Under cross-examination by Oye Esq. the appellant stated, inter alia, thus:-

 

"It is true that the client's money has been in my possession for the last two years. I have never hidden this fact which I also disclosed to Attorney-General of Abia State when trying to settle the matter . . ."

 

In answer to question by the LPDC, the appellant stated thus:-

 

"I confirm that I still have N18,000 of the petitioner's money in my possession. Even if I take 25% of the amount as the agreed legal fee to be paid to me, I am still owing the petitioner some money.

 

. . . I do not have the whole money to be refunded to the petitioner here now."

 

In the judgment of the first respondent appears the succinct summary of the cases as put forward by both parties to the case and the judgment of the first respondent. The summary is direct and to the point relevant to the issue for determination? it includes the following:-

 

"The lynch pin of her reply to question put to her under cross-examination is that although the respondent admitted that he collected a total of about N25,000 (twenty five thousand naira) on her behalf, she had not been paid any amount by the respondent in spite of repeated demands which entails her coming from Cameroun (sic) to Nigeria on several occasions for the purpose of collecting her money."

 

As regards the case of the appellant, the first respondent stated thus:-

 

"Shorn of all irrelevances, the sum total of his evidence is that it is true that he collected a sum of about N25,000 on behalf of the petitioner.

 

He said that he paid N1,000 to the petitioner's son out of the money. Some part of that aforesaid money also got trapped in the hand of one Morgun Ubiadah of the High Court Registry Official. He admitted that at the time of filing of the petitioner's complaint and even up to the hearing of this matter he still had in his hand N18,000 as client's money which he had not paid to the petitioner. In answer to questions put to him by Dele Oye Esq., the respondent said that he kept the aforesaid client's money because the petitioner told him she had lost interest in pursuing the case . . ."

 

The first respondent then concludes thus:-

 

"The petitioner, frail old woman who is a widow strikes us a (sic) witness of truth. We accept her testimony which has in fact been confirmed by the evidence of the respondent himself. The respondent did not seriously dispute the fact that he received client's money which he did not pay to the client for a period of over two years. The money even up till now remains unpaid. We therefore have no hesitation in finding you Mr Eke Umazi Ndukwe, legal practitioner guilty of infamous conduct in a professional respect pursuant to the provisions of section 11(1) of the Legal Practitioners Act, Cap. 207 of the laws of the Federation of Nigeria, 1990 . . ."

 

It is the above finding that learned Counsel for the appellant has attacked vigorously. It is very clear that the finding that the petitioner, second respondent in this appeal, is a frail old woman who is a widow and strikes the members of the first respondent as a witness of truth, is completely within the province of the first respondent to make particularly as it involves the first respondent exercising the opportunity of watching or seeing the said second respondent testify before it and observing her demeanor. Also the finding that the second respondent is a witness of truth falls within that province and this Court being an Appellate Court cannot substitute its own finding for that of the trial tribunal and, in fact, is in law not capable of so doing. It has to be always borne in mind that the complaint against the appellant is mainly that he collected clients' money which he failed or refused to pay over to the client and there is sufficient evidence on record to support the finding that this was the case. The finding is also supported by the testimony of the appellant himself who has in effect substantially admitted the accusation. There is therefore nothing to be analysed by the first respondent. The finding is not perverse and I find no legal basis for this Court to disturb the same. I also do not agree that the appellant was found liable for a different complaint from that for which he was charged. Whether the appellant failed or refused to pay over to the second respondent the sum recovered is of no moment, the truth of the matter being that he did not pay the money to second respondent as required of him by the profession he professes to practice. I therefore resolve the issue against the appellant.

 

During argument in Court learned Counsel for the appellant had urged the court to exercise its prerogative of mercy/clemency on the appellant who, according to learned Counsel, has now fully paid over the sum of N25,000 to the second respondent by cautioning and discharging the appellant. He cited and relied on case no. FSC/344/1959 In the matter of Nedd, Vol. 9, Digest of Supreme Court cases by Fawehinmi pages 761-762 for the plea of clemency.

 

It must be noted that the payment took place after the judgment of the first respondent was pronounced and therefore does not form part of the main record though learned Counsel for the appellant filed a supplementary record to reflect the state of affairs.

 

However, looking at the decision of the first respondent which gave "direction that you Eke Umazi Ndukwe, Legal Practitioner be suspended from the Bar and we also order you not to engage in practice as a Legal Practitioner for a period of one year commencing from today, 7 October 2002," it is clear that the punishment was not severe particularly as it did not strike out the name of the appellant from the roll of Legal Practitioners in Nigeria. It merely suspended his right to practice as a legal practitioner for a period of one year. This Court has the power, in considering appeals of this nature, to either add to, reduce or caution and discharge an appellant where the appeal is not allowed as in this case but the fact must support the exercise of that discretion. In the instant case the respondents have not asked the court to add to the sentence which I would have considered very seriously having regard to the gravamen of the offence which does not only affect the appellant as a legal practitioner but the reputation of all members of the legal profession in general and the urgent need to try to bring the current wave of professional misconduct under some meaningful control for the good of the nation in general and the legal profession in particular. Since there is no such request, I will not consider it.

 

I however consider the suspension of the appellant for a period of one year to be very lenient and hold the view that it not be disturbed.

 

In conclusion I find no merit in the appeal which is accordingly dismissed and the application for the exercise of prerogative of mercy on the appellant is refused. The judgment of the first respondent is hereby affirmed with a further order that the one year suspension of the appellant will now take effect from today, the 9 February 2007 being the day the appeal is decided and the judgment of the first respondent affirmed.

 

I make no order as to costs.

 

KATSINA-ALU, JSC:- I have had the advantage of reading in draft the judgment delivered by my learned brother, Onnoghen, JSC. in this appeal. I entirely agree with his reasoning and conclusion. There is nothing I can usefully add.

 

I too dismiss the appeal. I also abide by the order as to costs.

 

MUKHTAR, JSC:- This appeal that emanated from the decision of the disciplinary committee set up under section 11(2) of the Legal Practitioners Act, Cap. 207 Laws of the Federation, 1990, has in the appellant's amended Brief of Argument, four issues for determination, distilled from seven Grounds of Appeal. The issues have been dealt with extensively in the lead judgment written by my learned brother, Onnoghen, JSC. I would however by way of emphasis like to comment on Issue (ii) in the appellant's amended Brief of Argument, which reads thus:-

 

"(2.) Whether the LPDC proceedings were initiated by due process of law.

 

By virtue of the provision of section 4 of the Legal Practitioners (Disciplinary Committee) Rules, the process of initiating a disciplinary proceedings is as set out below:-

 

In any case where in pursuance of section 10(1) of the Act the Disciplinary Committee is of the opinion that a prima facie case is shown against a legal practitioner, the Nigerian Bar Association shall forward a report of such a case to the secretary together with all the documents considered by the Nigerian Bar Association, and a copy of the charges on which the Nigeria Bar Association is of the opinion that a prima facie case is shown."

 

The said section 10 of the Legal Practitioners Act (supra) mentioned in the rule stipulates as follows:-

 

"10.  (1)    There shall be a committee to be known as the legal practitioner's Disciplinary Committee (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."

 

Learned Counsel has made heavy weather of the absence of formal charge in the proceeding before the Disciplinary Committee, albeit from the Nigerian Bar Association. The pertinent question to ask at this stage is, what should a charge be in this context?

 

In a disciplinary proceeding on professional misconduct, as in this case, a charge could be a complaint by the Nigerian Bar Association at the instance of a complainant who feels aggrieved by the conduct of a lawyer, and not a formal framed charge as in a criminal proceedings.

 

Now, on the first day of the proceedings on 18 June 2003, Dele Oye Esq. who represented the Nigerian Bar Association, as is evidenced on page (1) of the proceedings stated the complaint against the appellant thus:-

 

"The complaint of misconduct against the respondent E. Ndukwe Esq. is that in his capacity as a legal practitioner for the petitioner he recovered the sum of N25,000 in part settlement of judgment debt but refused to pay it over to the petitioner. The respondent was alleged while acting as legal practitioner for the petitioner to have compromised the case of his client in breach of his instruction."

 

It is on record that the appellant denied all the allegations, and after the petitioner had closed her case, the appellant was allowed to open his defence, as is evidenced on the third day of the Record of proceedings. What then is the fuss made on the absence of a charge or lack of fair hearing? There is no doubt whatsoever that the appellant knew very well of the misconduct he was alleged to have committed as is evidenced by the correspondences between the appellant and the parties and he even tried to justify his action. This is in accord with the purport of a charge, which is to understand the reason why you are before a court of law, tribunal or committee, as in this case. In short, the point is, the appellant understood why he was facing the Legal Practitioners' Disciplinary Committee. The argument of learned Counsel is based on technicalities which the appellant wants to capitalise on and distort the cause of justice. The most important thing is that the appellant was very much aware of the misconduct that was the subject of the proceedings before the legal practitioner's disciplinary committee.

 

I agree with the reasoning and conclusion reached, in the lead judgment and also dismiss the appeal for it is completely devoid of any merit. I abide by all the consequential orders made in the lead judgment.

 

MOHAMMED, JSC:- The appellant in this appeal is a Legal Practitioner who was tried and convicted by the Legal Practitioners Disciplinary Committee after finding him guilty of infamous conduct in a professional respect. He was sentenced to a suspension term of one year within which he should not engage in practice as a legal practitioner. The suspension term was to commence from 7 October 2002.

 

The appellant who was not happy with the decision of the Legal Practitioners Disciplinary Committee, in exercise of his right of appeal under section 12(7) of the Legal Practitioners Act Cap. 207, Laws of the Federation of Nigeria, 1990, as amended by the Legal Practitioners (Amendment) Decree No 21 of 1994, has now appealed to this Court. His further amended Notice of Appeal contains seven Grounds of Appeal. From these Grounds of Appeal, the appellant in his appellant's Brief of Argument identified the following four issues for determination:-

 

"(1)   Whether the first complaint against the appellant before the LPDC amounted to a crime (Ground 4).

 

(2)    Whether the LPDC proceedings were initiated by due process of law (Ground 3).

 

(3)    Whether the LPDC was in the circumstances of this case properly constituted when it made its finding of guilt against the appellant. (Grounds 1 and 2).

 

(4)    Whether the actual decision of 7 October 2002 was lawful credible and sustainable."

 

In the Brief of Argument filed on behalf of the Legal Practitioners Disciplinary Committee defending its judgment in this appeal as the first respondent, two issues were formulated while in the second respondent's Brief of Argument three issues were identified for determination.

 

In the leading judgment of my learned brother, Onnoghen, JSC, with which I entirely agree, the issues as formulated in the appellant's Brief of Argument were thoroughly considered and effectively resolved. The facts giving rise to the present appeal are not at all in dispute. The appellant, a legal practitioner was briefed by the second respondent in this appeal to register a foreign judgment obtained from a court in the Republic of Cameroon and execute the same in Nigeria against the judgment debtors who then were resident in Nigeria. The appellant accepted this Brief and proceeded to register and execute the foreign judgment in the process of which he was able to recover the sum of N25,000 but failed to pay this sum to his client the second respondent in spite of several demands by her in course of which she made several trips from Cameroon to Nigeria. Dissatisfied with the conduct of the appellant, the second respondent petitioned against him resulting in the investigation by the Nigeria Bar Association which found the complaint against the appellant substantiated justifying his being tried by the second respondent. In the proceedings before the second respondent which commenced on 18 June 2002, both the appellant and the second respondent testified and were duly cross-examined. The second respondent in a considered judgment found the appellant guilty of unprofessional conduct as a member of the legal profession and directed for his suspension accordingly.

 

In the course of the proceedings before the second respondent, the appellant, a legal practitioner on trial for unprofessional conduct, admitted in no uncertain terms that he collected some money due to his client from the execution of a judgment in favour of the client but failed to pay that sum of money to the client in spite of repeated demands up to the time of his trial by the second respondent. These clear admissions are contained at page 24 of the Record of this appeal where the appellant said:-

 

"All I want to add is that the amount so far paid to me by the Registrar is less than N25,000. There is still a balance of N5,000 unpaid till today . . . I paid N1,000 to the Petitioner's son. At a point when the petitioner decided to debrief me, I explained all the steps I had taken to her. She said that she was not going to pursue the matter any further. I still have N18,000 in my hand which I have not paid to her . . . I confirm that I still have N18,000 of the petitioner's money in my possession. Even if I take 25% of the amount as the agreed legal fee to be paid to me I am still owing the petitioner some money-I made the same disclosure to the Attorney-General of Abia State. I do not have the whole money to be refunded to the petitioner here now."

 

Thus, from the story told by the appellant himself regarding the prevailing situation in the course of his trial before the second respondent on the compliant against him, it is not at all in dispute that he unjustifiably retained his client's money and failed to deliver it to her notwithstanding her filing a petition against him. Certainly where a legal practitioner without any justification held on to his client's money, all right thinking member's of the legal profession must view this misconduct with great concern not only for the protection of the public particularly clients like the second respondent but also for the protection and preserving the good name of the legal profession.

 

With this, I say I entirely agree with my learned brother, Onnoghen, JSC in his judgment that there is no merit at all in this appeal which I hereby dismiss.

 

OGBUAGU, JSC:- The facts of this case leading to the instant appeal, are not very much in dispute. They have been admirably stated in the lead judgment of my learned brother, Onnoghen, JSC, which I had the advantage of reading before now. I adopt the same as mine. For purposes of emphasis, I will make my own contribution.

 

When this appeal came up for hearing on 16 November 2006, Akpan, Esq., - learned Counsel, for the appellant, moved their motion dated and filed 19 August 2005 to amend the appellant's Amended Notice of Appeal and his Brief of Argument which was not opposed and was duly granted. After, adopting the appellant's Amended Brief and urging the court to allow the appeal, the learned court stated/submitted that assuming that the court does not agree with the appellant's Brief, that there is the need for clemency. He referred to the case or decision of "this Court", "in the matter of the Legal Practitioner's Ordinance (Cap. 110 of the Revised Edition, 1948) in the matter of Robert Archibold Nedd" dated 3 March 1960 - per Ademola, FCJ - a certified photocopy of which he later made available to us. He finally urged the Court to exercise its clemency as, according to him, the appellant made an attempt to pay.

 

In respect of the said plea, Mr Oye referred the Court to page 26 of the Records. Quakers, Esq., told the Court that the issue of payment, was not made an issue before the first respondent. He referred to page 24 of the Records and left the issue to the discretion of this Court. Mr Akpan then stated that he will plead for a Warning and that "it will not happen again".

 

In view of the copious Amended Brief of the appellant through his learned Counsel - Akpan Esq. and the respective respondent's Briefs, I will deal with the merits of the appeal. As to the Issues of the parties, I will deal even briefly, with Issues (one) 1 and thereof 2 of the appellant and the second respondent and Issue (one) 1 of the first respondent. At page 2 of the Records, is the letter of the Chairman of the Disciplinary Committee of the Nigerian Bar Association (hereinafter called "the NBA")-Aiku, Esq., (SAN) dated 12 October 2005 to the Secretary of the first respondent. It is headed-"Re: Complaint of Misconduct against E.U. Ndukwe, Esq." and it reads, inter alia, as follows:-

 

"The complaint of misconduct against the above named legal practitioner contained in a petition of Madam Nwana A. Agwu is that:-

 

(1)    E.U. Ndukwe Esq., while acting as legal practitioner for the petitioner recovered the sum of N25,000 in part settlement of judgment debt but refused to pay it over to the petitioner? and

 

(2)    E.U. Ndukwe Esq., while acting as legal practitioner for the petitioner in breach of his (sic) instructions compromised the case of the petitioner."

 

I note that at page 3 of the Records, the Petition of the second respondent, had been forwarded at the instance of the Chief Justice of Nigeria, to the then President of the NBA-O.C.J. Okocha, Esq. (SAN). At pages 7-12 thereof, is the response of the appellant to the said Chairman of the said Committee of the NBA dated 26 June 2001, on the direction of Okocha, Esq., (SAN). It is headed thus: "Re Complaint against Barrister Eke Umazi Ndukwe Legal Practitioner in Ohafia Abia State". The first paragraph of this response/reply/letter, reads inter alia, as follows:-

 

"I have been directed by the President NBA OCJ Okocha (SAN JP) to forward my reply/response to the petition written against me by one Madam Nwanna A. Agwu a native of Ohafia but based in Camerouns (sic) to you, hence this letter. The petition was addressed to the Chief Justice of Nigeria who referred same to the President NBA . . ."

 

At pages 15-19 thereof, is a copy of the letter dated 5 January 2001, written by the appellant, to the Chief Registrar, Administrative Division Judicial Headquarters, Umuahia. It is also headed as his letter to the NBA (supra). It was/is in response to a letter dated 5 December 2000. The second paragraph of this letter, reads as follows:-

 

"I will firstly congratulate Madam Agwu the complainant for being the first client I have had in twenty-two years of my practice who had a complaint against me in my professional capacity. I am not claiming to be a saint but I am by my nature, background and belief above certain levels of meanness like compromising my name or integrity. People who honestly know me can attest to this fact."

 

At pages 21 and 22 thereof, is a copy of his letter dated 11 May 2001 to the Attorney-General, Ministry of Justice, Umuahia. It reads, inter alia, as follows:-

 

"I am sure that Madam Agwu the petitioner has no basis for her petition against me, she has gotten herself confused and thinks that propagating falsehood will assist her, may I crave your indulgence to adopt my explanation to her first petition addressed to the Chief Judge of Abia State. I also enclose the copy of her said petition addressed to the Honourable Chief Judge for your information.

 

It is Madam Agwu who is creating what ever problems she claims to have over this case for herself because she is the one who has made the matter last till date. She collected her file from me under the pretext that she was no longer pursuing the matter until then she showed no signs of disgust as I explained each step I took to her satisfaction.

 

I recall that I spent almost an hour explaining to her that she was taking a wrong decision by wanting to collect her file but she would not agree

 

I will once more suggest that both sides be invited for a face to face thrashing out of this matter so as to put it to rest. It is I who should be complaining that Madam Agwu breached the terms of our contract by debriefing me without cause."

 

I note at page 6 thereof, that the petition, was copied to ten (10) different persons, bodies, institutions and organisations but not to the Police or any law enforcement agency.

 

Finally, at page 23 of the Records, are the Proceedings of the first respondent on 18 June 2002. The following appear, inter alia:-

 

"Dele Oye Esq. for NBA

 

Respondent present, appears in person.

 

Dele Oye, Esq: The complaint of misconduct against the respondent E. Ndukwe, Esq. is that in his capacity as a legal practitioner for the petitioner he recovered the sum of N25,000 in part settlement of judgment debt but refused to pay it over to the petitioner. The respondent was alleged while acting as legal practitioner for the petitioner to have compromised the case of his client in breach of his instruction." (The underlining mine.)

 

The appellant then stated, as follows:-"I deny all the allegations."

 

I have taken pains to go this far in order to show firstly, that it is the appellant in his Brief, who is raising the issue of complaint against him before the first respondent, as amounting to crime and at paragraph 1.3 of the Brief, of "The lack of a drafted charge:- The source of the problem". Ironically, in paragraph 1.2(1), the following appear:-

 

"the appellant did not even see that the main issue, the financial side of the allegations, (receiving N25,000 and refusing to pay it over) was the main focus of the committee's concern, and that the so called unlawful compromise of suit was incapable of proof (the committee did not even waste it's time on this second allegation."

 

In the judgment of the first respondent, at page 27, of the Records, the following appear, inter alia:-

 

". . . The grouse of the petitioner was that although the respondent succeeded in getting some of the moveable of the judgment debtors sold to satisfy part of the judgment debt, the respondent never paid any money to the petitioner. The petitioner who was ordinarily resident in the Republic of Cameroon had to come to Nigeria several times for the purpose of recovering the judgment debts but all her efforts were of no avail because the respondent had compromised the claims of the petitioner by not sincerely pursuing the sale of the immovable properties of judgment debtors."

 

So, I or one may ask. Where is the complaint against the appellant before the first respondent amounting to crime? I see none. In any case, from the Records, I see no where, the appellant ever complained or even raised any objection as to the jurisdiction of the first respondent entertaining and determining the complaint against him if he was genuinely and honestly contending that the complaint against him, amounted to his committal of a criminal offence and therefore, it was the regular court that is competent to try him. Even if It were a criminal trial, the provision of section 167 of the CPL (Criminal Procedure Law) is apposite - i.e. that any objection to a charge for any formal defect on the face thereof, shall be taken immediately after the charge has been read over to the accused and not later. So be it. Again, it is the duty of an accused person who appears for himself or his Counsel, to raise the said objection promptly.

 

As a matter of fact, from what I have demonstrated hereinabove, sections 10(1)(b) of the Legal Practitioners Act, Cap. 207, Laws of the Federation, 1990 (hereinafter called "the Act") provides as follows:-

 

"The Body of Benchers shall be responsible . . .

 

(b)    the exercise of disciplinary jurisdiction over members of the legal profession and over students seeking to become legal practitioners."

 

Section 11(i) thereof provides as follows:-

 

"There shall be a Committee of the Body of Benchers to be known as the Legal Practitioners Disciplinary Committee (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 the person who is a member of the legal profession has misbehaved in his capacity as such or should for any reason be the subject of proceedings under this Act."

 

These provisions which are clear and unambiguous put beyond any doubt, that the first respondent, has the jurisdiction to hear and determine the said complaint against the appellant and not a regular court. In fact, in the case of LPDC v Gani Fawehinmi (1985) 2 NWLR (Part 7) 300, also cited in the appellant's Brief, it is therein conceded that this Court, held/decided that the first respondent, is a Tribunal created by statute and not a pre-trial investigator. That its duty, is purely adjudicative to consider and determine any case charging a Legal Practitioner with misbehaviour of the code of conduct for Legal Practitioners and that its Direction, is equivalent to a sentence passed by a court of law after conviction or a finding of guilt. However, the case of Charles Okike v LPDC (2005) 7 SC (Part III) 75 at 93, 94, 113, 115-116? (2005) 1 SCNJ 596? (2005) All FWLR (Part 274) 337, has put to rest, the meaning of "charge" in the Act, as a process by which all the essential elements of any allegations, are brought to the notice of the respondent.

 

For decided authorities in respect of raising objection and when to do so, see the cases of R v Ntia (1946) 12 WACA 54? Ejilikwu v The State (1993) 7 NWLR (Part 307) 544 at 583? (1983) 9 SCNJ 152? Ugwu v The State (2002) 4 SCNJ 282 at 290 and recently, John Agbo v The State (2006) 6 NWLR (Part 977) 583? (2006) 1 SCNJ 332 at 356? (2006) 1 SC (Part II) 73 at 96-97? (2006) Vol. 135 LRCN 808 at 846-847 and (2006) 2 SCM 1 at 24.

 

Since the appellant and his learned Counsel, have not shown any embarrassment caused to the appellant who acquiesced or consented to the hearing or proceeding or any miscarriage of justice occasioned as a result, I dismiss the said issue and all the arguments proffered in the Brief in respect thereof as being, with respect, bogus. It is no other thing, than their relying on technicality and the courts, lean against it. (See the cases of The State v Gwonto (1983) 1 SCNLR 142 and Igbokwe v Nlenchi (1996) 2 NWLR (Part 429) 185 at 202 just to mention but a few).

 

I have also shown earlier in this judgment, that the appellant clearly, adequately and conclusively, had the information and knowledge of the nature and particulars of the complaint against him. He denied the charge, cross-examined the petitioner and in fact, thereafter, testified on his own behalf after the close of the Petitioner's case. He even admitted or confirmed that he still had in his possession, the sum of N18,000 (Eighteen thousand naira) of the Petitioner's money. He even admitted under cross-examination by Dele Oye, Esq., that it is true that the Petitioner's money, has been in his possession for the past/last two years. I will touch on this later having regard to the submission or statement in his Brief. So, the appellant and his learned Counsel, cannot be heard of any complaint about the absence of a formal charge. I find as a fact and hold that his Issues No. 1 and 2 and all the arguments in respect thereof, are an after-thought. I reject them in their entirety. If however, the learned Counsel for the appellant, insist that the appellant should be tried before a regular court on a formal charge in what he contends amounts to a crime, it is not late. But to now in this appeal, challenge the jurisdiction of the first respondent and the proceedings initiated at the hearing by it, in my respectful view, is completely misconceived.

 

On Issue 3 of the appellant, I note at page 23 of the Records, that on 18 June 2005 which was the date the matter was heard, six (6) members were present. The Chairman was Alhaji Abdullahi Ibrahim CON, SAN. Oguntade, JCA (as he then was), Oyeyipo, CJ (now retired), Ajakaiye, CJ, Chief B.O. Benson, SAN and Chief Emmanuel Toro SAN were members present. Mr Nwobidike Nwanodi, Esq., (sic) was recorded as No. 5 of the members who were absent with an apology. But at page 26 thereof, when judgment was delivered, although Ajakaiye, CJ was absent with an apology, Mr Nwobidike Nwanodi Esq. (sic) was present. It is conceded or admitted in the appellant's Brief by Mr Akpan the learned Counsel for the appellant, that Nwanodi, Esq., neither heard evidence nor subscribed to the Directions. Yet, he submitted that the "presence" of Mr Nwanodi, nullified the proceedings. Wonders it is said, shall never end. So, how can or could the presence of Mr Nwanodi on the date the judgment was delivered and who it is admitted never heard or subscribed to the Directions, nullify the proceedings? I or one may ask. The whole thing sounds or appears to me, very absurd in the extreme and amounts to stretching this straightforward matter, too far as has been done in the appellant's Brief. It is most regrettable and unfortunate.

 

In the first place, the Quorum of the first respondent, is prescribed by the combined effect of Item 1 of the Second Schedule of the Act, section 11(2) of Decree No. 21 of 1994 as amended by section 15(a) and (b) of the same Decree. Both at the hearing of the case and the date judgment was delivered, the three (3) compulsory persons, were present.

 

Secondly, and this is also settled, a mere variation in the composition of a Panel or tribunal or court, which does not affect the substance of the inquiry, cannot touch or affect, the judgment or decision, of such a body neither does such variation, render the judgment or decision, a nullity. Significantly, the learned Counsel for the appellant, cited the case of Adeigbe & another v Kusimo (which he spelt as Usimo) & others (1965) 1 All NLR (1990 Reprint) 260 at 263-264 - per Ademola, CJN also cited and relied on in the first respondent's Brief. In both Briefs, the relevant pronouncements, were reproduced (although not fully by the first respondent). It is as follows:-

 

". . . The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the persons who gave it had not seen and heard all the witnesses, they could not appraise the evidence as a whole and decide the facts properly. Thus, it is a complaint on the soundness of the judgment itself, and not a complaint that is extrinsic to the adjudication. We are therefore of the opinion that variation in the bench do not make the judgment a nullity? They may make it unsatisfactory and it may have to be set aside for this reason but whether they do or not depends on the particular circumstances of the case." (The underlining mine.)

 

I note that the appellant in his Brief, most conveniently, omitted in their reproduction, the sentence underlined by me.

 

Now, the Committee is a Tribunal and not a regular court. Even in a court that a Panel is constituted including the two Appellate Courts in this country, it has been held that, it is not necessary for all the Justices that heard the matter, to be present during the delivery of their judgment. Indeed, one of them can read out and deliver the judgment of the Court in the open court. (See the case of Okino v Obanabira & 4 others (1999) 12 SCNJ 27). In the instant case, that the Chairman signed the judgment alone, I hold, does not and will not nullify or vitiate the said proceedings and the judgment. Again, the appellant and his learned Counsel who have not shown what miscarriage of justice that has been occasioned to the appellant by that fact or act, are again, relying on mere technicality that no longer lives with our courts. There is the legal presumption of regularity expressed in the latin maxim of "Omnia praesumuntur rite esse acta" which principally, is applied to judicial, official and quasi-judicial acts. I too, hold that in this particular circumstances, there was never a variation in the quorum of the membership of the Panel both at the hearing and at the date of the delivery of the judgment. This issue, with respect, is frivolous and lacks merit. It is dismissed by me together with all the submissions in respect thereof.

 

In respect of Issue 4 of the appellant, I should have ignored it, but for the strong language appearing in the arguments/submissions in respect thereof. In paragraph 7.2, the following appear - "snappy, short cut judgment devoid of analysis or evaluation of evidence" and at paragraph 7.3, the following is stated thus: "the tribunal perversely summed up the petitioner's evidence."

 

It should be noted that the evidence of both the Petitioner/second respondent and that of the appellant and the respective cross-examination, were brief. The facts of the case, were not in dispute. It is settled that what is admitted, need no further proof. The appellant cross-examined the second respondent. In his defence, he tendered his letter or Reply dated 26 June 2001 which was admitted in evidence as Exhibit 8. The Statement of defence in respect of one of the Petitioner's judgment debtors - Eka Philip, was admitted in evidence and marked Exhibit 9. As I stated earlier in this judgment, the appellant under cross-examination by Dele Oye, Esq., stated as follows:-

 

"It is true that the client's money has been in my possession for the last two years . . ."

 

Then, in answer to a question from the first respondent, the appellant, had this to say, as follows:-

 

"I confirm that I still have N18,000 of the Petitioner's money in my possession. Even if I take 25% of the amount as the agreed legal fee to be paid to me, I am still owing the petitioner some money? I made the same disclosure to Attorney-General of Abia State. I do not have the whole of the money to be refunded to the petitioner here now." (The underlining mine.)

 

What else did the appellant and his learned Counsel want the first respondent to write? I or one may ask. The above, is from the mouth or evidence of the appellant. The first respondent, should have summarily, given judgment on the spot, but in its wisdom, it reserved judgment in order to give a considered decision. It should be noted that no pleadings were filed and exchanged. The appellant after his evidence, closed his case and did not call any witness as it was not necessary in the circumstances of his testimony and admission. The learned Counsel for the appellant, wants or submitted that the first respondent, should have written a long judgment where it will analyse or evaluate the evidence before it. He submitted further that although the first respondent summarised the evidence before it, but that it did not analyse the said facts nor appraise or evaluate it. If I may ask, what evidence was there to analyse, appraise or evaluate? Is it the said admission of the appellant who said it is true and he confirmed that he still had or has in his possession for the past/last two (2) years - i.e. as at 2002, the second respondent's money and even at the date of the said judgment? I wonder loudly and visibly. It is really disgusting to me, to say the least. The first respondent, is accused in the appellant's Brief of manufacturing evidence for the second respondent and found the appellant guilty of an offence not alleged against him nor disclosed in the complaint before it. To worsen matters, although the first respondent was most lenient in suspending from the Bar the appellant for a period of one (1) year from engaging in practice as a Legal Practitioner commencing from 7 October 2002, a period that elapsed since 7 October 2003, and he should have resumed if he has not already resumed his private legal practice, the appellant has from the Brief, regrettably, ridiculed the first respondent who should have struck out his name from the Roll of Legal Practitioners and by his appeal, stressed the second respondent. I don't like this at all. This is terrible! This is monstrous! This is really very unfair to the first respondent or its said Panel members! It is even stated in the Brief, that if the first respondent had been clear in its mind about what it was considering, it would have been apparent, that there was no evidence to find a case of prior demand by the second respondent and refusal to pay by the appellant and so on.

 

Remarkably, those unjustly maligned in the appellant's Brief of giving "snappy, short cut judgment devoid of analysis or evaluation of evidence", perversely summing up the Petitioner's evidence, "manufacturing evidence for the second respondent and finding the appellant guilty of an offence not alleged against him nor disclosed in the complaint before it", are legal giants and legal luminaries of impeccable character. The members of the Panel who heard evidence culminating in the said judgment, are the Chairman of the Panel who is a SAN and a former Attorney-General of the Federation, a former Justice of the Court of Appeal, now a Justice of this Court, two Chief Judges (now retired) and two distinguished Senior Advocates of Nigeria!

 

Frankly speaking, I do not find anything perverse in the judgment of the first respondent. The first respondent (although that was not necessary in my respectful view since the appellant admitted the facts and the debt in his evidence), believed the second respondent who the members saw testify and described her as a "frail old woman and a widow". It described her as a witness of truth and accepted her testimony which it stated "has in fact been confirmed by the evidence of the respondent (now appellant) himself". Indeed and in fact, one of the bodies the second respondent copied or sent a copy of her Petition, is "5 Widos (sic) Association of Abia State, Government House, Umuahia".

 

As I stated at the beginning of this judgment, Mr Akpan pleaded with the Court for leniency and for a warning. From what I have adumbrated in this judgment, with the greatest respect, the said plea, is woefully belated. If the learned Counsel had initially, confined himself to this plea, since the facts are not disputed, perhaps, may be, the Court should have exercised its discretion but how? One or I may ask. I too, refuse the plea.

 

Finally, I note that the Brief of the appellant is of 46 pages. I wish to observe and this is also settled, that a Brief, is not a place to give evidence. It is supposed to contain submissions tied to the evidence contained in the Record of Appeal. (See Benjamin Obasuyi v Business Ventures Ltd (2000) 5 NWLR (Part 668) at 690). A Brief by its name, should and ought to be brief. By way of an advise, insulting language by learned Counsel in a Brief, should please, be avoided. (See the observation of Tobi, JCA (as he then was), in the case of Mokwe v Williams (1997) 11 NWLR (Part 528) 309 at 321 CA).

 

In conclusion, it is from the foregoing and the fuller reasons in the said lead judgment of my learned brother, Onnoghen, JSC, that I agree with his conclusion that the appeal stands dismissed. I too, dismiss it and I abide by the consequential orders including that on costs.

 

Appeal dismissed.