Citation: (2022) 5 NWLR PT. 1823 AT 244.
PARTIES IN FULL:
DR. OSARETIN GEORGE IZEVBUWA
V.
1. NIGERIAN BAR ASSOCIATION
2. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE.

Courtesy: Moruff O. Balogun Esq.

Summary of facts:
The 1st respondent filed a three-count complaint against the appellant, for fabricating a Business Finance Agreement, acted as a guarantor as well as acted for the money lender. The appellant was also alleged to have written a false petition against the
petitioner and instigated the arrest and detention of the petitioner by the police, and thereby conducted himself in an infamous manner contrary to Rules 1, 15(1)3(g)(i)(j), 26(1), 27(1), (2)(a), (b)&(c) and 55(1) of the Rules of Professional Conduct for Legal
Practitioners, 2007, punishable under Section 12(1) of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (as amended).

The appellant was, however, not found liable in counts 1 and 3, but found liable in count 2. Nevertheless, the Legal Practitioners Disciplinary Committee handed down its decision wherein it directed, upon finding the appellant liable for infamous conduct as a legal practitioner, that the appellant be and he is hereby suspended forthwith from carrying on the trade or business of legal practice or as a legal practitioner tor a period of 2 (two) years from the date of the Direction.

The appellant was aggrieved and appealed to the Supreme Court on the ground that the Direction of the Legal Practitioners Disciplinary Committee was a nullity being that the Committee that heard the proceedings was altered and different from the one which delivered the direction.

Held: Unanimously allowing the appeal. The direction being null and void, the appeal succeeds and is allowed.

The following issues were raised and determined by the Supreme Court:

On whether the Legal Practitioners Disciplinary Committee is an appellate panel –
The Legal Practitioners Disciplinary Committee is not an appellate panel, but a first instance panel where the evaluation of evidence is made. When an absent panelist relies on the colleague present when a witness(es) testified to render an opinion, such
opinion is premised on hearsay evidence, and it is perverse. A decision in the circumstance is nothing but a travesty of justice.

On whether there is distinction between fair hearing and fair trial –
Fair hearing involves a fair trial, and a fair trial of a case consists of the whole hearing and there is no distinction.
Indeed, where as in this case the panel which sat and heard the allegedly erring legal practitioner is different from the panel that found the appellant guilty of misconduct, the proceedings and decision reached are a nullity due to the infraction on his fair hearing right.”

On need for decision of Legal Practitioners Disciplinary Committee to be by same panel that heard complaint –
Section 11(3) of the Legal Practitioners Act states that only members of the Legal Practitioners Disciplinary Committee that deferred a decision must be those who will take the decision at the adjourned or deferred date.

It enjoins those members who were not in the quorum that adjourned the decision not
to participate in the decision on the adjourned or deferred date. Where a disciplinary panel sits, hears and determines the complaint (petition) against the erring legal practitioner is differently composed (constituted) from the panel that eventually finds
the legal practitioner (the appellant, as in the instant case) culpable, the entire proceedings and the decision arrived thereat are a nullity and liable to be set aside.

In the instant case, out of the six members of the LPDC that took the final decision on
27th February 2019, Hon. Justice Marshall Mukoro, C.J Delta State and Hon. Oluseun Abimbola, A.-G., Oyo State, were not among the six (6) persons who took the final addresses on 5th February 2019 and deferred the Decision/Direction to 27th February
2019, Rather, Hon. Justice Abdu Aboki, PJCA and Yusuf Ali, SAN who were among the six persons that deferred the decision after hearing the final addresses on 5th February 2019 were absent at the deferred decision on 27th February 2019. The presence of Hon. Justice Marshall Mukoro and Hon. Oluseun Abimbola, A.-G., Oyo State sitting with the committee on 27th February 2019 to take the decision vitiated the decision of the committee and indeed the entire proceedings as both members evaluated evidence and oral addresses they did not hear.

On implication of Court or tribunal deciding without hearing parties-
Deciding without hearing is an aspect of denial of fair hearing. It hovers between not giving the party adversely affected by the decision an opportunity to be heard (audi alteram partem) and the non-impartiality of the Judex. The rule is: he who decides must hear. In other words, he who did not hear the evidence must not decide or determine the civil rights or obligations of another based on the evidence.

Consequently, for a member of a judicial tribunal or an arbitrator to participate in
the evaluation of evidence and eventually decide on oral evidence and even oral submissions that he did not hear, is tantamount to breach of the right to fair
hearing or natural Justice.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]