Why must discipline be instilled ?

For us to maintain the value and ethics in the profession.

 

How many professional offences are there?

The law has set out 4 categories:

1. Infamous conduct in a professional respect
2. Fraudulent enrolment in the legal profession /obtaining enrolment by fraud
3. Conduct not amountingto infamous conduct, but which is incompatible with the status of a legal practitioner. (Conduct incompatible with the status of a legal practitioner)
4. Conviction by a court in Nigeria of an offence which is incompatible with the status of a legal practitioner

 

1) Infamous conduct in a professional respect  

It has to do with those things that the law will not tolerate in the course of his profession. There is no guide

“ if it is shown that…..in the pursuit of his profession, he has done something with regard to it which would be reasonably regarded as disgraceful…. Then it is open… to say that he has been guilty of infamous conduct in a professional respect”

per lopes , LJ in Allinson v General Council of Medical Education and Registration (1894)

Also see NBA V ALABI (2006); OKIKE V LPDC (2005);NDUKWE V LPDC

e.g. misappropriation of clients money

If it is not done in a professional respecti.e. in the course of carrying out the duties, then it is not infamous conduct –Re Idowu

How do we know which offences that will amount to infamous conduct and those that will not?  Any yardstick ? Does the RPC determine; this or not? See R 55(1) – the rule doesn’t define infamous conduct in a professional respect.

What happens where misconduct amounts to a crime?

Where an offence has a criminal element and also something the LPDC should try, the criminal matter should be tried first before taking it back to LPDC so as to avoid conflict of decisions and also it has to be proven that the person committed the crime because that accusation has to be proven beyond reasonable matter.

 However where a person admits commission of crime, then there is no need to try the criminal matter first it can go straight to the LPDC

The way an offence is coined can be an offence for the LPDC to try e.g. embezzlement of clients fund – this is not coined in this way in the criminal code, it would be refereed to as conversion

The tribunal would stay action until the personhas been tried and convicted ina duly constitutedcourt of the offence. Reason is MDPDT

The person charged must however deny the allegation. Where he admits the tribunal need not await the outcome of the court.

Where the wording of the charge is couched in such a way that it does not exhibit a criminal element, the committee can go ahead to try the misconduct as charged without waiting for the outcome of the court. See again NDUKWE’S CASE. (failure to handover proceeds of judgement debts and 

 

• Obtaining enrolment by fraud

Where a person has gained admission into the legal profession based on a misrepresentation such that if not for that misrepresentation he would not have been admitted into the legal profession. 

Examples: forgery of certificates, misrepresentation of personal data etc.

 The nature of the offence is criminal

Obtaining enrolment by fraud is where there is a fraudulent act or a misrepresentation of material facts as to the status of a person to an authority to secure his enrolment in the Supreme Court.

Would it make a difference if the representation arose from a mistaken belief?  Yes because it wasn’t a deliberate act so it wasn’t by fraud.

It is the intention at the time that matters even if the information subsequently turned out to be correct.

 

• Conduct not amounting to infamous conduct, but which is incompatible with the status of a legal practitioner

The fact that it didn’t happen in the course of the person acting as a LP doesn’t make it any less of a misconduct.

Defined as offences done outside the pursuit of an LP’S profession, one which tarnished or is capable of tarnishing the image of the profession.  This standard is borne out of the statutory need for a legal practitioner to be of good character at all times.

What happens if it contains a criminal element? Same as infamous conduct

e.g. habitual drunkard, notorious fighter, incessant shoplifter, brothel patroniser, notorious gambler, bigamist, coveting client’s spouse.

 

• Conviction by a court in Nigeria of an offence which is incompatible with the status of a legal practitioner

What are the pre-conditions?

• There must be a conviction
• It must be by a court in Nigeria
• The offence must be incompatible with the status of a LP

Abuah v Legal practitioners Committee (Re Abuah) – forgery by LP to appropriate, he stole

What shall the committee consider? The committee shall consider the nature of the deed that was incompatible with the status or position of a legal practitioner. See Re Abuah

Argument: that punishment by the LPDC after the conviction by a court amounts to double jeopardy – Discuss. See Re Abuah

Cf provisions of s.36(9) of the CFRN 1999.

Can the LPDC still punish where criminal offence and conviction was struck off on technical grounds? Re King (1845) 15 LJQB 2. Yes, it looks at the substance, so its possible that on technical grounds for want of diligent prosecution the matter was struck out but it doesn’t mean the matter cannot be tried by the LPDC, the matter that was struck out can still be determined by the LPDC and the LP can still be fined.

 

Procedure

Proceedings before the LPDC:

Possible persons (s) under the LPDC rules to which the matter can be reported – R3 of the LPDC Rules

 

• The Chief Justice
• President of NIC, chief judge of the state high courts, chief judge of federal high courts, chief judge of high court of FCT
• Attorney General of the Federation

You can return to one of the categories of people

 

• To where is the complaint forwarded?NBA, And what happens at this stage? R 4 LPDC Rules

The complaint is forwarded for investigation and to see or establish if there is a prima facie case. This is the only function of the NBA at that stage, they don’t determine the matter, they are not the body that determines the matter they only establish if there is a prima facie case. If there is no prima facie case that is the end of the investigation. If there is a prima facie case they write a report and forward it to the secretary of the legal practitioners disciplinary committee. NBA only investigates. They hand over the report the documents that were considered to come to conclusion and a copy of the complaint or petition. So - the complai,  nt, document considered and report. 

 

Procedure

NBA sends to

• Documents of
• Copy of original complaint
• The report

 

Standard of proof? R 10; NBA v ALABI

Note that the outcome of the committee must be gazetted. R 20

NBA, the LP and any other person with leave of the committee are usually parties to the charge as it is the NBA lawyer that is the prosecutor

Argument: that it is a legal breach for the NBA to take legal action against persons or in defence of them. Comment

 

Punishment

What possible punishment may be suffered by a guilty legal practitioner? R 17

• The LP will have his name struck of the roll of LP’s in the Supreme Court
• Admonition/ caution or warned
• In a case of embezzlement the LP will be ordered to refund the monies embezzled or document
• Suspension of the LP from practice for such a period as may be specifiedin the direction

 

Note that the punishment meted out must be commensurate with the nature of the offence committed e.g. , an LP’s name can not be struck off the roll in a case of habitual drunkenness.

 

Appeal.

Where do these lies? Appeal Committee of the body of benchers - There is no such body. So appeals lie to the Supreme court. The court erred in the cases of ALADEJOBI V NBA (2013) ; and AKINTOKUN V LPDC (2014) by stating that appeals should lie to the Appeal Committee of the body of benchers as this body is no longer in existence.

Within what time duration can an affected LP appeal? 28 days

 

Restoration

Can there be a restoration of struck off name or cancellation of a suspension? Is it automatic? No it isn’t automatic, the person has to apply

 They will consider the following grounds before restoring his name to the roll of LP of the Supreme Court

• Gravity of the offence
• The concerned LP must have shown remorse
• Applicant has become a fit and proper person and generally of better behaviour over time

 

To whom is the application made? – it depends . who punished?

• The LPDC
• The Supreme Court: the supreme court has two powers 1)original because they have the power to punish and 2) appellate because appeals lie to them. It must be an offence of infamous conduct in a professional conduct, they cannot punish for the other 3 grounds.

Can a matter that has been decided by a Supreme Court be re-decided by the LPDC? No , the LP is estopped over going such a matter

 

CJN

Disciplinary jurisdiction of the chief justice of Nigeria. S 13(2)

What sort of offence does it consider? Charge must be one pending before the LPDC

Lawyer must make representations in defence

What punishment can be meted out to the LP in question? Suspension pending the outcome of the LPDC.

 

 

APPOINTMENT AND DISCIPLINE OF JUDICIAL OFFICERS

Judicial officers

S 318(1) constitution – restriction to holders of judicial offices

Qualification for appointment as judicial officers

• Supreme court:

At least 15 years post call experience. Appointment is by the president on the recommendation of the national judicial council subject to confirmation by the senate – s231 Const.

 

• Court of appeal:

At least 12 years post call. – s 238

 

• Federal high court

 

• High court of the FCT: appointment by the president upon the recommendation of the NJC .s 256 const.

 

• National Industrial court: 10 years post call and must display considerable knowledge in the law and practice of industrial relations and employment conditions in Nigeria – S 254B. The head of the court is known as the president and his appointment is by president on the recommendation of the NJC and  subject to  the confirmation of the senate

 

• Sharia court of appeal – s 261. Qualification: 10 years post call and obtained a recognised qualification in Islamic law from an institution which is approved by the NJC

 

• The customary court of appeal of the FCT Abuja – appointment of the president and judges of the court us made by the president upon the recommendation of the NJC. The appointment of the president of the court however requires confirmation by the senate:

S266 (3)

Legal practitioner of at least 10 years standing + in the opinion of the NJC he has considerable knowledge and experience in the practice of customary law: or

Where he is not a LP, if in the opinion of the NJC he has considerable knowledge of and experience in the practice of customary law.

 

Bodies/ organs involves in the appointment of judicial officers

1. The federal judicial service commission/ state judicial service commission / FCT judicial service committee
2. The national judicial council
3. The governor/president
4. The national assembly/ house of assembly of a state

 

FEDERAL JUDICIAL SERVICE COMMISSION

 It is on the federal executive bodies established pursuant to s153 constitution

Functions/ powers include:

Advising  the NJC in nominating persons for appointment to the judicial offices listed in par 13 in the third schedule of the constitution;

And recommending to the NJC  the removal from office if any such judicial officer

 See par 13, part 1,  3^rd schedule to the const.

 

STATE JUDUCIAL SERVICE COMMISSION

It was established as an executive body for each state pursuant to s197 constitution

Composition – se s197(2) &para 5, part II, 3^rd Schedule cont.

Functions/powers

See ps

 

NATIONAL JUDICIAL COUNCIL

A federal executive body established by virtue of s153(1)(i) constitution.

Composition as stated in par 20, part 1 . – Study the membership

 

Appointment procedure

See the revised NJC guidelines and procedural rules for the appointment of judicial officers of all superior courts of records in Nigeria, 2014

 

1. Notice to the governor by the chairman of the state JSC (for appointment into a superior court of a state)

Where it is federal court, then the head of the court who proposes to embark on appointment of judicial officers gives notice to the CJN/Chairman NJC.

Where it is the appointment of a judicial officer in the FCT is involved, then it is incumbent on the chairman of the JSC of the FCT to give notice to the NJC

 

2. At the same time the notice is being served ,m a copy of the notice must also be forwarded to the secretary of the NJC so that he can see whether form the budget of the NJC
3. The secretary NJC advises the CJN/chairman as regard the number of the judicial officer that can be accommodated by the budget of the council for the year
4. The CJN/CNJC notifies the chairman, SJSC or the head of the court to proceed or not proceed with the exercise. a copy of the notice to the governor + the governor response thereto is served on each member of the JSC
5. On the receipt of the CJN/CNJC decision the relevant JSC:

1. Call for expression of interest by suitable candidates placed on the website, and notice board of the courts and the NBA
2. Write to every other head of superior court of record in Nigeria and to every judicial officer of the court in issue asking for nomination of suitable candidates
3. In the case of appointments into a federal court, write to the chairman, NBA or in the case of a state court, then to the chairman of each branch of NBA in the state asking for nomination – Rule 3
4. In the case of appointment of a JSC or JCA, then the CJN or the PCA shall write to the heads of courts, serving JSC/JCA and president NBA asking for nomination
5. Any nomination must be in writing with details of the personal/professional knowledge of the nominee.

Upon the close of nomination, the chairman JSC makes a provisional shortlist on the merits of not less than twice the number of judicial officers required to be appointed. The shortlist is circulated among:

1. all serving and retired judicial officers of the court in question
2. allserving and retired heads of the court in issue (and in the case of the appointment of head or court, on the retired CJNs and PCAs)
3. the NBA branches in the state, in the case of  federal appointment , then to the PNBA
4. every member of the JSC(judicial service commission) concerned

 

6. The provisional shortlist is placed by the chairman JSC before the JSC for approval as the final list
7. Factors to be considered:

1. Professional expertise + competence- evidence of contested cases in the last 5 years in case of a LP ( 5 years preceding the nomination)
2. Sound knowledge of law
3. Seniority at the bar
4. Federal character or geographical spread.

Note: no one with tarnished reputation or a judicial officer whose performance is low should be shortlisted

8. The chairman or the secretary JSC on the CJSC direction forwards to each of the shortlisted candidate NJC FORM “A”for completion and submission with all necessary attachments
9. The Chairman of the judicial service commission tables before the JSC memorandum in respect of each shortlisted candidate with:

1. The completed NJC FORM A with attachments
2. The comments received on the candidate
3. Any petition or protest
4. Detailed medial certificate of fitness
5. Report by the DSS

 

10. Recommendation to the NJC by a memorandum addressed to the CNJC to be accompanied with:

1. Minutes of the meeting of the JSC where a decision was made on the nomination
2. All the material placed before the JSC
3. Proof of establishment prescribed by the legislation
4. Proof of available capital
5. Proof of available capital vote
6. Real + verifiable proof of availability of court hall, residence, car , library
7. A chart which shows at a glance the essential particulars of the candidates shortlisted

 

Note: Also check the disqualifying factors

Things that must be attached to application:

• 4) Proof of available capital
• 5) Proof of available capital vote
• Real + verifiable proof of availability of court hall, residence, car, library
• A chart which shows at a glance the essential particulars of the candidates shortlisted

 

Interview by the NJC – once the interview is passed the person is announced as a judge

 

DISCIPLINE OF JUDICIAL OFFICERS

1. Note the code of conduct of judicial officers 2016
2. Note the code of conduct of public officers 5^th schedule const.
3. Note the role of the JSC and NJC in the discipline of judicial officers

 

Grounds for removal

1. Misconduct
2. Breach of code of conduct: the two codes - code of conduct of judicial officers 2016, code of conduct of public officers 5^th schedule const.
3. Inability to discharge functions of office

 

 

Removal of office

Generally a judicial officer cannot be removed before his age of retirement except under the conditions stated in s.292 constitution.

Note the retirement age in s 291 constitutions – in any other court at age 60 they can retire, by age 65 they have to retire s291(2); in the supreme court or court of appeal they may retire at age 65 and shall cease to hold office when he attains 70 years of age s291(1).

 

Can the state governor/ SHA discipline or remove a CJ without the input of the NJC ELELU-HABEEB V NJC  (2012) 13 NWLR  PT (1318) 423– read the case

And Read the codes