Moses v. Nigerian Bar Association (NBA) [2019] 8 NWLR (Pt. 1673) 59 at 69, para. H, per Augie, JSC:

“The bottom line is that the Respondent (NBA) cannot be sued in its name, which is what this Court held in Fawehinmi v. NBA (No. 2) (supra) decided in April, 1989, and it is safe to say that nothing has changed since then for this Court to hold otherwise today in February, 2019. The decision still stands; the Respondent is not a juristic person.”

Notes:

What happened was that a petition was submitted to the Disciplinary Committee of the Nigerian Bar Association (NBA) against the Appellant, who is a legal practitioner based on allegations of misconduct. In the usual way, the NBA considered the petition and on seeing some merits on the face of it, the NBA filed a complaint at the Legal Practitioners Disciplinary Committee (LPDC) against the Appellant.

The LPDC, after due consideration, found the Appellant guilty of infamous conduct in the course of performing his duty as a legal practitioner and directed the Chief Registrar of the Supreme Court to strike out the name of the Appellant from the roll of Legal Practitioners.

The Appellant challenged the decision of the LPDC by an appeal to the Supreme Court. In the appeal, the NBA was named as Respondent by the Appellant. The Respondent (NBA) raised a preliminary objection on the ground that it is not a juristic person and as such, cannot sue or be sued. The Appellant contended that since the NBA was the complainant before the LPDC, the NBA can validly be a Respondent for the purpose of the appeal filed at the Supreme Court. The contention is logical in the sense that if the NBA could stand as complainant at the proceedings before the LPDC, then there is no reason it should not be a proper party at the appeal. Otherwise, as argued by the Appellant, the proceedings before the LPDC should be declared a nullity.

As logical as the contention of the Appellant may sound, the Supreme Court held that same was however misconceived. The Supreme Court, relying on Fawehinmi v. NBA (No. 2) [1989] 2 NWLR (Pt. 105) 558, held that the NBA is not a juristic person, and consequently struck out the appeal. Augie, JSC reasoned that the NBA was merely playing the role assigned to it under the Legal Practitioners (Disciplinary Committee) Rules (as mended) whereby the NBA can validly forward a report of any investigation to the LPDC for proper action, pursuant to Sections 1(1) and 10(1)(b) of the Legal Practitioners’ Act. In effect, while the NBA plays its part, the LPDC will go ahead and consider the complaint.

The Supreme Court concluded that an appeal against the decision of the LPDC can be brought, while making the LPDC a party instead of the NBA. This is because the LPDC is a legal person that can sue and be sued. See LPDC v. Fawehinmi [1985] 2 NWLR (Pt. 7) 300.

The Supreme Court in the instant case conceded (like it did in the old case of LPDC v. Fawehinmi supra) that the current structure is quite problematic and called for an amendment of the relevant statute. Eko, JSC quoted Oputa, JSC (of blessed memory) thus:

“Discipline in the Legal Profession is very necessary. I seriously doubt if this discipline can be achieved under the present law – Act No. 15 of 1975. There is an urgent need for an amendment of the law to provide for two ancillary but yet independent bodies namely:- (a) An Investigating Panel which will conduct all necessary investigations regarding allegations of misconduct against a legal practitioner. If this panel is satisfied that there is a prima facie case made out, then it will prefer charges. But it will not “consider or determine” those charges. That function which is really adjudicative will then be left to the second body:- (b) The Legal Practitioners Disciplinary Tribunal. This tribunal will then try the legal practitioner and if it finds him guilty, it will feel free to impose the appropriate penalty. To ensure the observance of the rules of natural justice, no one person will serve on both bodies. This will inspire confidence. That is the position in England; that was the position in Nigeria under the 1962 Legal Practitioners Act.”

His Lordship, Eko, JSC, expressed his support for the above observation and continued:

“I share this sentiment. I wish to add that if the Nigeria Bar Association (NBA) cannot be made a corporate entity either by legislation or under the Companies And Allied Matters Act (CAMA), then like the Legal Practitioners Disciplinary Committee (LPDC), the Legal Practitioners Investigating Panel (or Committee) should be clothed with juristic personality and clearly empowered as such to be also the prosecuting body on behalf of the NBA. In the event of an appeal against the direction of the LPDC, such arrangement obviates the confusion as to who the respondent is or should be.”

While the necessary action is anticipated, in the meantime, it must be noted that the LPDC can be validly made a respondent to any appeal against its decision at the Supreme Court. This was clearly stated by Augie, JSC as mentioned above. In the instant case, all hope is not lost. The appeal was merely struck out. The Appellant may refile the appeal accordingly.

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