By Mike Ozekhome
INTRODUCTION
Professional ethics is for all professionals, not just lawyers. Every profession has certain rules of engagement and red lines that must never be crossed. Where a member does, he/she is disciplined by a body or tribunal usually put in place for that purpose. For example, the medical profession has the The Medical and Dental Practitioners Disciplinary Committee, just like Nigerian lawyers have the Legal Practitioners Disciplinary Committee, to keep members in check, remove charlatanism and keep the streams of the profession clean and running. So, be better informed and guided accordingly by reading on.

The tribunal or panel is a very important organ of every professional association; it is the organ by which the association by itself controls the conduct of its members and jealously guards its reputation for the maintenance of high professional standard. The truth which is unknown to many is that until 1985, despite to wealth of knowledge in the legal profession, the disciplinary procedure of legal practitioners was fundamentally faulty. The fault was exposed by late Chief Gani Fawehimi, SAN of blessed memory in LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V. GANI FAWEHIMI.

Surprisingly, the main challenge with the procedure for discipline of legal practitioners in pre-1985 era was that the procedure was in breach of the fundamental principle of fair hearing – nemo judex in causa sua a man cannot be the judge in his own cause. Nigerian Bar Association was the accuser and the judge at the same time.

The hallmark of the post – 1985 procedure is that there is now separation between the accuser and the judge and the independence of the Panel is now guaranteed. Meanwhile, Article 17 of the NBA Constitution provides that the NBA Branches shall have the powers to investigate reports of professional misconduct against their members and if need be, send a report of the finding to the Chairman of the Disciplinary Committee as provided under the Legal Practitioners Act and the Secretary of the Association. Now the stages of the procedure of the Legal Practitioners Disciplinary Committee are as follows:
(a) The complaint and service of the complaint
(b) The defence and proof of a prima facie case
(c) Appointment of legal practitioner to present the case
(d) The panel
(e) The trial
(f) Holding of proceeding in private and pronouncement of finding in public
(g) The decision.

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Notwithstanding that the principle of fair hearing is absolute, the law does not allow for abuse of the principle. Hence in NIGERIAN BAR ASSOCIATION VS AKINTOKUN the court held –
“Where the respondent has been given adequate or ample opportunity to appear and present his case or defence to the complaint of professional misconduct against him, but chooses not to avail himself of such opportunity, the Disciplinary Committee is left with no alternative than to decide the matter on the unchallenged evidence before it.”

5.5.9 In the notorious case of DR. DENLOYE V MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE
The appellant appealed against the decision of the Medical and Dental Practitioners’ Disciplinary Tribunal which found him guilty on five counts of infamous conduct in a professional respect. The tribunal had ordered the removal of his name from the medical register. The first count charged the appellant with neglect of a patient for almost a Fortnight. The second count charged him with extortion of the sum of 30 guineas from the patient’s father in order to induce him to examine and treat the patient. The 3rd, 4th and 5th counts relate to different transactions namely, the receipt of the amount of the £2.2s in each of counts 3 and 4 and £2 in count 5 by the appellant for false Pre-Employment certification of fitness. The Supreme Court restated the rule that a body established by law may have the power to decide its own procedure and lay down rules for the conduct of inquiries regarding discipline. The only requirement is that such inquiry must be conducted in accordance with the rules of natural justice but gave judgment in his favour on the ground that the withholding of the evidence by the tribunal when the appellant demanded for it constituted a denial of justice to the appellant. For the above reasons, the court set aside the order of the tribunal and restored the appellant’s name to the medical register.

Likewise, in Court martial which by virtue of the 1999 Constitution, appeals from its decisions goes straight to the Court of Appeal and therefore at par with the High Courts and therefore special courts. Though a special court, proceedings at Court Martial are bound by the principles of fair hearing and natural justice. Their proceeding must comply with the cardinal principles of fair trial. An accused before a Court Martial has the right to be represented by a Legal Practitioner of his choice. It is mandatory under rule 25, Rules of Procedure Army 1972 as well as in those of the Navy and Air Force, to enable the accused adequately prepare his defence. It is also pertinent to state that the accused person is entitled to be defended by a legal practitioner of his choice who may either be a civilian or service personnel which are in conformity with the Constitution.

See the case of ANYANKPELE V. NIGERIAN ARMY, where the appellant, a Brigadier General in the Nigeria Army was charged for Disobedience to Standing Order, contrary to section 57 (1) of the Armed Forces Decree and Conduct Prejudicial to Good Order and Service Discipline contrary to section 103 of the Armed Forces Decree. He was convicted by the Court Martial. On appeal to the Court of Appeal, the decision was quashed because the order contravened was neither published nor brought to the attention of the accused officer. It is part of fair hearing that an accused professional must be confronted with the offence of misconduct he/she is charged with. This will include the allegation and the proof thereof.

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DISIPLINARY COMMITTEE’S

Section 10 of the Legal Practitioners Act provided for the scope of disciplinary jurisdiction of the Legal Practitioners Disciplinary Committee. It provides thus:
10- Establishment of Disciplinary Committee
(1) There shall be a committee 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 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…

It should however be noted that this various professional tribunals, boards and or committees were set up to try certain misconducts and offences that are not criminal in nature. Where the offence carries an imputation of crime as provided by the various criminal Codes/laws of the States, the Administration of Criminal Justice Act 2015, Laws of the Federation, then only the court would have jurisdiction to try the accused for the alleged offence. In the case of MEDICAL AND DENTAL PRACTITIONER’S DISCIPLINARY TRIBUNAL V. OKONKWO, one of the main issues was whether the Medical and Dental Practitioners Disciplinary Tribunal has jurisdiction to try an offence which discloses an allegation of criminal offence? The Supreme Court held that;
“The Medical and Dental Practitioners Disciplinary Tribunal is set up to try specified offences under the Medical and Dental Practitioners Act. It has no jurisdiction to try criminal offences at large”

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Also, in the case of I.H.A.B.U.H.M.B V. ANYIP, states further;
“Once a person is accused of a criminal offence, he must be tried in a court of law. It is necessary for a prior judicial interpretation and determination before further disciplinary action can be meted out to a person accused of a criminal offence”

It should however be noted that the mere fact that there is an element of crime in a professional misconduct does not rub the tribunal automatically of jurisdiction in dealing with the matter. In this instance, the tribunal would proceed with the disciplinary sittings, make its decision on the misconduct and thereafter refer the matter to a competent court to decide on the allegations of crime involved in the ethical misconduct. This position was succinctly stated in the case of NDUKE V. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE & ANOR. In this case, the appellant, a Legal Practitioner has appealed against the decision of the Legal Practitioners Disciplinary Committee debarring him from practicing law for a period of one year on the basis that the petition against him contained imputations of crimes for which he admitted and as such the committee lacked the jurisdiction to have entertained the petition in the first place. The Supreme Court in dismissing the appeal held 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.”

Let us quickly take a peep into the disciplinary procedure of the Armed Forces of Nigeria. The disciplinary body of the Armed forces in Nigeria is the Court Martial. This body has disciplinary powers on persons who have breached the Military’s code of Ethics. Court Martial is a special Court which has jurisdiction to try persons who are subject to Service Law. Members of the Armed Forces; the Army, the Navy and the Air Force are persons who can be tried by a Court Martial, because they are persons subject to Service Law. The jurisdiction of the Court Martial extends to military offences and offences committed contrary to the Criminal/penal law of Nigeria by a person subject to Service Law. The Court martial derives constitutional flavour from Section 240 of the 1999 Constitution (as amended). The Section provides: 240- Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federation Capital Territory, Abuja, High Court of a state, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a state, Customary Court of Appeal of a state and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly

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Having said all this, it shows that the law treats professional offences differently from criminal offences. In GARBA VS UNIVERSITY OF MAIDUGURI the Supreme Court held that; a professional disciplinary tribunal or panel cannot try or convict a person for a crime; only a competent tribunal or court of law can convict a person for a crime. However, where a professional is charged with a criminal offence and convicted, the professional can be subject to disciplinary action by his professional association.

In Nigeria, it is well stated that a Lawyer cannot appear in a matter where he has any interests.
The consequences of a conflict-of-interest situation for the lawyer can be severe and costly. For example, acting with a conflict of interest can result in civil liability for professional malpractice as well as disciplinary action. Some very serious consequences also flow from a proven claim in contract, tort or equity, including:

• disqualification from representation of one or more clients;
• forfeiture of fees charged; the inability to charge for work in progress and other time invested;
• embarrassment, inconvenience and aggravation of defending a malpractice claim or investigation;
• lost time spent on defending a malpractice claim or investigation.

Thus, it is clear that lawyers have to be very careful while dealing with potential and current clients, so as to ensure that a conflict of interest situation does not arise. When such a situation does arise, the best plan of action is to request the new client to seek other representation so that the interests of the current client are not adversely affected.

THOUGHT FOR THE WEEK
“Ethics is knowing the difference between what you have a right to do and what is right to do”. (Potter Stewart).

LAST LINE
God bless my numerous global readers for always keeping fate with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Chief Mike Ozekhome, SAN, OFR, FCIArb., LL.M, Ph.D, LL.D. kindly, ride with me to next week’s exciting conversation.