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ETHICS: LEGAL CONSIDERATIONS IN PROFESSIONALISM

ETHICS: LEGAL CONSIDERATIONS IN PROFESSIONALISM


1. PROTOCOL

2. INTRODUCTION

2.1 By a letter dated May 6, 2019 issued under the hand of Pharm. Mazi Sam Ohuabunwa, FPSN, Chairman APBN 2019 Professionals Summit Planning Committee, I was invited as Lead Speaker at the Association of Professional Bodies of Nigeria’s (APBN) 8th Edition of the Professional Summit scheduled for 23rd and 24th July, 2019 at this very impressive venue. I am honoured with the invitation and sincerely appreciate the Planning Committee Chairman who indeed for the right reasons have occupied the media space for some time now and is currently President of Pharmaceutical Society of Nigeria. I pay respect to the President of APBN, Engr. (Chief) Olumuyiwa Alade Ajibola, FNSE. I have known him for a while as a committed professional with very high ethical standards, Past President of Nigerian Society of Engineers, an Arbitrator before whom I had the privilege to appear as counsel to one of the parties , High Chief of the Source (Ile-Ife) and a distinguished Nigerian with illustrious professional career path and noble percentage.


2.2 For the purpose of the link to this paper, I must pay tribute to my brother and friend Pharm. (Dr.) Dan Oruwmense. He is humble, humane, very unassuming, unassuring and a gentleman per excellence. He really spoke with me and an agreement was reached before I had the privilege of having in my archives the signature of Pharm. Mazi Sam Ohuabunwa, FPSN by virtue of the letter of invitation and I am pleased to be here and privilege to stand before this array of very distinguish personalities to attempt a presentation.


2.3 While I recognize my inadequacies while accepting to discuss a topic as wide as this, covering several fields of study, I was at least consoled in the fact that I have been restricted to legal considerations in Professionalism. Even that in itself, is an intimidating and open ended topic for discussion, which is titled:– “Ethics: Legal Considerations in Professionalism”.


2.4 The topic is as old as humanity itself, very relevant today and holds our future going forward. Inspite of all said above, my consolation is from the fact that all professional bodies in Nigeria ditto the world-over face similar problems relating to standards, compliance and enforcement or discipline when and where necessary. It is therefore on this note that I crave your indulgence to speak as I will do, in that, I basically seek to speak for all, even where the references are more of example from the Nigeria Bar Association. This can be easily adopted and has always been adopted for matters touching on other professional bodies- taking into consideration the relevant focus of the different bodies.


2.5 Without much ado, I will attempt some definitions of the key words deployed to couch the topic, consider the legal requirements for the body that ensure professionalism exists in our society today and the challenge of standards and discipline within the rank of professionals.


3. DEFINITIONS:

3.1 The proper way to start this discussion is to define the three (3) main words used in couching the topic: ethics, legal and professionalism.


i. The New International Webster’s Comprehensive Dictionary of the English Language Usage at page 437 defines ‘Ethics’ to mean ‘… standard of character’. Similarly, Chambers English Dictionary (1990) at page 488 defines ’ethic’ to mean ‘… professional standard of conduct’. Black’s Law Dictionary 9th Edition at page 976 has no definition for “Ethics” but defined “Legal Ethics” which is adoptable as “Standard of Professional Conduct applicable to members of the legal profession”. But at page 632 defined “Ethical Consideration” as “A structural component of the ethical canons set forth in the legal profession’s Mode Code of Professional Responsibility, containing a goal or ethical principles intended to guide a lawyer’s professional conduct”. The common word is standard; ‘standard’ means a ‘criterion of excellence’.


ii. The word “Legal” is defined as “of or relating to law or falling within the province of law or established, required or permitted by law”. See Black’s Law Dictionary 9th Edition at page 975.


iii. Further, The New International Webster’s Comprehensive Dictionary of the English Language Usage at page 1006 defines ‘Professionalism’ to mean ‘… the practice of some profession as a business: opposed to amateurism’. Chambers English Dictionary (1990) at page 1166 is more emphatic, it defines ‘professionalism’ to mean ‘… the competence, or the correct demeanour, of those who are highly trained and disciplined’. The definition of ‘professionalism’ in Chambers English Dictionary (1990) at page 1166 sets the appropriate tone for the discussion. This definition clearly states that every profession involves specialized training usually set out and monitored by the instrument establishing the association. Black’s Law Dictionary 9th Edition at page 1329 defines “Professionalism” as – “The practice of a learned art in a characteristically methodical, courteous, and ethical manner”.


3.2 Respectfully it is therefore submitted that from the totality of the definitions of the key words for this topic, a profession must first be recognized by law. One of the prerequisites for the recognition therefore, is that, it must be a practice of a learned art, as a result of recognized methods of training spanning period of time with unique character and accepted methodology. For any person to qualify therefore, he must have acquired the required skill or training in addition to being a person of good standing. He or she must be a fit and proper person to be admitted as a professional in a particular profession both in character and learning.


3.3 Professionalism therefore has its roots in legal acceptance of the set standards for its creation or existence and that being so, it can neither be practiced or established for one person alone. It must be for all those who meet the minimum standard set for admission into the profession.


3.4 Professional associations thereby evolve to press for legal recognition, control and discipline of its members to maintain the set standards. We shall then proceed to see the legal effect and or consideration in professionalism.


4. THE ESTABLISHMENT OR REGISTRATION OF PROFESSIONAL ASSOCIATIONS IN NIGERIA

4.1 The first legal consideration in professionalism in Nigeria is the establishment or registration of professional associations in Nigeria. Section 40 of the 1999 Constitution provides –


‘Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any association for the protection of his interest.’


4.2 WELFARE OF MEMBERS: Thus, the primary objective for the formation of professional associations is to promote the welfare of members and protect the integrity of the profession against abuse by outsiders and members. There are over fifty (or even more) professional associations in Nigeria. To give effect to the constitutional right of freedom of association, the law requires that every association must either be established by statute or registered under Part C of the Companies and Allied Matters Act 1990 with the Corporate Affairs Commission. Thus, any group of persons that operate as an association that is not established by statute or registered with the Corporate Affairs Commission is an illegal association.


4.3 LEGAL PERSONALITY: The main benefit of the establishment or registration of an association is that the association is recognised as a person in law and confers with legal personality. Legally speaking, an association is said to have legal personality when the association has separate existence from its members, hence, the association can sue and be sued in its corporate name, the association has perpetual succession and it has powers to own land.


4.4 The lessons learnt in the case of GANI FAWEHIMI VS NIGERIAN BAR ASSOCIATION (NO. 2) (1989) 2 NWLR [PART 105] 558 is instructive. The brief facts of the case are that the Nigerian Bar Association had been established in 1958 as a voluntary professional association; it was neither established by statute nor registered with the Corporate Affairs Commission even though the association was recognised by the Legal Practitioners Act. The Supreme Court held that the Nigerian Bar Association lacked the legal personality to sue and be sued. In response to this decision, the Nigerian Bar Association is now registered under Part C or the Companies and Allied Act 1990 with the Corporate Affairs Commission.


4.5 Ordinarily, an association established by statute is not superior to an association that is registered with the Corporate Affairs Commission. In fact, it is more convenient to register as association with the Corporate Affairs Commission than to sponsor a bill in the legislature to establish an association. However, the main distinguishing factor which has both legal and constitutional consideration is contained in section 36(12) of the 1999 Constitution which provides –


‘Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and a penalty therefore is prescribed in a written law; and in this subsection, a law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.’[1]


4.6 A professional association registered under Part C of the Companies and Allied Matters Act, 1990 is a voluntary association having trustees and a constitution. The constitution provides, among others, for its name, trustees, membership, aims and objects, meetings, executive committee, funding, discipline, amendment, etc. But in the case of a professional association established by statute, in addition to providing for the foregoing, it provides for professional offences, penalties and establishment of the disciplinary tribunal or committee.


4.7 Article 17 of NBA Constitution which provides for ‘Discipline’ in a way to avoid conflict with section 36(12) of the 1999 Constitution. This is because any provision in any other law and or rule in conflict with any provisions of the Constitution shall be void to the extent of the inconsistency. Section 1(3) of the 1999 Constitution of the FRN (as amended) provides thus: -


1(3) “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of its inconsistency be void.”

4.8 It is to avoid any conflict with the provision of the Constitution particularly Section 36(12) of the 1999 Constitution that Article 17 of NBA Constitution provides –


‘The 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’


4.9 The above underscores why professional associations go through the rigor of finding a sponsor of the bill to establish the professional association and lobby for its passage. Of course, the Association of Professional Bodies in Nigeria being an umbrella body for other recognised associations would not have to seek a statute to validate its existence, as it can always refer the issue to the relevant professional body for necessary action, if it so desires in accordance with its rules or code of ethics, if issue of Professional Misconduct is alleged.


5. COMPLIANCE AND ENFORCEMENT


5.1 CODE OF CONDUCT

5.1.1 As stated earlier, every statute establishing a professional association in Nigeria provide for membership, discipline, professional misconduct, offences, penalties and trial of members who are in breach of the code of conduct or rule of professional conduct or engaged in any kind of unethical conducts. It is clear that each profession has its own standard, accepted rules or codes of conduct (ethics) that is peculiar to it, depending on the nature of its operations. The code or rules of professional conduct, by whatever name it is called, are prepared and revised by the appropriate authority pursuant to powers conferred on the appropriate authority in the statute establishing the professional association.[2] So the making and or review of the code or rules of professional conduct must be guided the legal considerations guiding the making of subsidiary legislation also known as delegated legislation.


5.1.2 A typical code or rules of professional conduct provides, among others issues, for relation with client,[3] relation with colleagues - fellow professionals,[4] duties to the state,[5] etc. The offences and penalties are contained in the statute establishing the professional association; the offences unlike the typical criminal offence are often drafted in wide language and they emanate from breaches or failure of a member to comply with the code or rules of professional conduct. For example, Rules 55 of the Legal Practitioners Rules of Professional Conduct 2007 provides –


‘If a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in the Legal Practitioners Act.’


5.2 THE ADMISSION OF MEMBERS

5.2.1 The legal profession for instance is a noble profession; it is not opened to all manners of persons. In medieval England, only persons from noble backgrounds (Lords, Princes) were permitted to practice as lawyers. In Nigeria, even after meeting the rigorous process of qualification to practice law, a high standard of conduct is expected from lawyers and in the practice of law. At the Nigeria Law School, Professional Ethics is taught as a subject which an intending legal practitioner must pass before he/she is called to the Bar. In the case of N.B.A VS. OHIOMA (2010) 14 N.W.L.R (PT. 1231) 641 AT 680 the Supreme Court held thus;

“Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country’’

5.2.2 The Rules of Professional Conduct for Legal Practitioners in Nigeria (RPC) [6] has Fifty- Two Sections specifying the duties and responsibilities of lawyers to the Court, clients and the Legal Profession in general while Legal Practitioners Act Provides for the qualification, entitlements and discipline of Lawyers in Nigeria. Some of professional misconducts provided for by the RPC include;

(a) Knowingly doing an act or omission that may lead to the admission into the legal profession of a person who is unsuited for admission by reasons of his immoral character or insufficient qualifications[7]


(b) Calling at a client’s house or place of business for the purpose of giving advice to or taking instruction from client except in special circumstances[8]


(c) Aiding a non-lawyer in the unauthorized practice of law[9]


(d) Accepting an employment as an advocate in any matter upon the merits of which he had previous acted in a judicial capacity[10]


(e) Practicing as a legal practitioner while engaged in the business of buying and selling commodities, the business of commission agent and other business that tends to undermine the high standing of the profession[11].


(f) Putting personal benefit or gain or taking advantage of the confidence reposed on him by his client[12].


(g) Mixing of client money with a legal practitioner’s money or making use of same as his own[13]


(h) Bargaining with a witness either by contingent fee or otherwise as a condition for giving evidence[14]


5.3 REVIEW OF CODE OF CONDUCT

5.3.1 The General Council of the Bar in Nigeria is one of the controlling bodies in the legal profession. Part of the functions of the General Council of the Bar includes amongst others; the making and revising of rules of Professional Conduct for Legal Practitioners in accordance with the legal practitioners Act. The body responsible for the discipline of lawyers in Nigeria is the Legal Practitioners Disciplinary Committee.[15]

5.3.2 In the Medical field on the other hand, ethics refers to the medical oaths and codes that prescribe a physician’s character, motives and duties which are expected to produce a right conduct and this should guide the members of the medical profession in their dealings with one another, their patients and with their states.

5.3.3 In Nigeria, ethics and professional responsibilities are compulsory requirements for all professionals. These includes for example: the duty of lawyers to the court, the duty of lawyers to his clients, as well as the rules guiding the fiduciary obligation of lawyers and their relationship with other lawyers. Let me quickly add that ethical issues and discipline of members of a professional association should not be limited to the conduct of a member after he or she has been registered as a member of the association. Inquiry about the standing of an applicant is necessary to ensuring that only applicants with good records are allowed into the profession.

5.3.4 Thus, applicants seeking to be members of the professional association must be properly screened before they are admitted. Applicants must be made to disclose all previous allegations of misconduct and the outcome of the investigation or trial. Full disclosure is required; failure to disclose previous allegation should attract severe consequences. Usually the applicant is barred from applying for membership for a certain period of time. This is to ensure that at the time of entry, the applicant is a ‘fit and proper person’ to be admitted into the profession.

5.4 DISCIPLINE OR ENFORCEMENT OF RULES

5.4.1 In maintaining the ethics of the Legal Profession for instance. Lord Denning, the Master of the Rolls in commenting on the ethics of the Legal Profession in the case of RONDEL V. WORSLEY[16] opined thus:

“As an advocate, he is a Minister of Justice equally with the Judge. He has a monopoly of audience in the higher courts. No one save he can address the JUDGE, unless it be a litigant in person. This carries with it a corresponding responsibility. He must accept that brief and do all he honourably can on behalf of his client I say "all he honourably can" because his duty is not only to his client. He has a duty to the court which is paramount……….The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of profession and is subject to its discipline. But he cannot be sued in a court of law…..”

5.4.2 The Nigeria Medical Council for instance, has laid down rules and regulations for medical practitioners towards a patient and where a medical practitioner goes contrary to the rules and regulations, a medical tribunal is set up to try him for malpractices. The disciplinary committee for Medical Practitioners in Nigeria is known as the Medical and Dental Council of Nigeria. These Boards, Committees or tribunal depending on the preference of each profession has exclusive powers to sanctions members who breach the code of ethics guiding the profession.

5.5 FAIR HEARING

5.5.1 The 1999 Constitution of the FRN (as amended) has incorporated the Rule of Natural Justice by the enactment of the provisions of Section 36 thereof. The principle is based on the twin pillar of hear the other side before you judge and do not be a judge in your own case. These rules must be applied by any and or all adjudicatory bodies in Nigeria, failing which the decision of such disciplinary body would be rendered null, void and of no legal effect because such a decision would have breached the constitutional right of the accused professional to fair hearing. The courts therefore will not interfere with the decision of an administrative disciplinary body if the rules of fair hearing had been complied with.


5.5.2 When there is a breach of any of the rules of professional conduct, the appropriate remedy is to report to the breach to the relevant body for investigation. Then, a report of the investigation is made to the appropriate body and thereafter, if necessary, the member is tried by the tribunal or panel established for that purpose.[17] In the investigation and or trial of ‘offenders’ the most important consideration must be given to compliance with the provisions of Section 36(1) of the 1999 Constitution, which provides –


‘In the determination of his civil rights and obligations, including the question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.’

5.5.3 The Supreme Court Per Ogbuagu J.S.C in MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2005) LPELR-1816(SC)

’I will also, respectfully, share the views of Tobi, JCA, (as he then was) in his lead judgment in the case of University of Calabar & 2 ors. v. Esiaga (1997) 4 NWLR, (Pt. 502) 719 at 742 C.A. (cited and relied on by the learned counsel for the respondents also in their Additional Case Law and which came on appeal to this court and was also reproduced at page 10 of the S.C. report), where his Lordship, stated inter alia, as follows: "In so far as the examinations are conducted according to the University rules and regulations and duly approved and ratified by the University Senate, the courts have no jurisdiction in the matter. A court of law which dabbles or flirts into the arena of University examinations, a most important and sensitive aspect of University function should remind itself that it has encroached into the bowels of University autonomy. Such a court should congratulate itself of being a party to the destruction of the University and that will be bad not only for the University but also for the entire nation. Let that day not come.’’


5.5.4 The importance of the principle of fair hearing in the trial of ‘offenders’ cannot be overemphasized; it is universal and absolute, it does not permit of any exception. Fair hearing is so important that it is often said that in the Garden of Eden, God gave Adam fair hearing before He pronounced His judgment against Adam. Also, it is said that you cannot shave a man’s head in his absence. This principle does manifest itself in different ways during investigations and or trials at the tribunals.


5.5.5 Compliance with the code or rules of professional conduct is very important in maintaining integrity and professionalism; it would serve no purpose to have rules of professional conduct that are honoured more in breach than in compliance. Furthermore, it will also be counterproductive if the decisions of the disciplinary tribunal or panel cannot be sustained because of non-compliance with simple rules of administrative law and procedure.


5.5.6 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 VS GANI FAWEHIMI (1985) 2 NWLR [PART 7] 300. 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. NBA was the accuser and the judge at the same time.


5.5.7 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. Article 17 of 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.

5.5.8 Notwithstanding that the principle of fair hearing is absolute, the law does not allow for abuse of the principle. Hence in NIGERIA BAR ASSOCIATION VS AKINTOKUN (2006) 13 NWLR [PART 996] 167 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 (1968) 1 ALL N.L.R. 306; NSCC 260

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.


5.5.10 Court martial which by virtue of Section 240 of the Constitution of the FRN 1999 (as amended) appeals from its decisions is 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[18] and Air Force[19], 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.


5.5.11 In ANYANKPELE V. NIGERIAN ARMY[20], 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.



6 CRIMINAL OFFENCES

6.1 Section 10 of the Legal Practitioners Act[21] 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…

6.2 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 PRACTITIONERS DISCIPLINARY TRIBUNAL V. OKONKWO[22], one of the main issues was whetherthe Medical and Dental Practitioners DisciplinaryTribunal 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”

Also, in the case of I.H.A.B.U.H.M.B V. ANYIP (2011) 12 NWLR PT 1260, 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”

6.3 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 (2007) LPELR-1978 (SC). 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.”

6.4 Taking 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[23].

6.5 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

6.6 Having said all this, it shows that the law treats professional offences differently from criminal offences. In GARBA VS UNIVERSITY OF MAIDUGURI (1986) 1 NWLR [PART 18] 550 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.


7 APBN IN FOCUS


7.1 Let me say a little word about your association, the Association of Professional Bodies of Nigeria (APBN). As you are aware, APBN was given official Federal Government recognition as the third leg of the tripod of the Organised Private Sector (OPS) in January, 1992. However, I am aware that the activities of APBN started far back in 1983. APBN is actively involved in promoting and enhancing the status of professional bodies by ensuring maximal utilization of the talent, skills and knowledge of the Nigerian professionals. APBN believes that human welfare problems are multi-dimensional in nature and for this reason it employs a multidisciplinary approach to problem solving. In this regard, APBN discourages traditional professional prejudice, intolerance, and self-centeredness. APBN believes that, in the interest of the wider society, no profession needs to operate in isolation of the other professional bodies and by that very fact advocates frequent interfacing and cooperation amongst professions.[24]


7.2 The Association of Professional Bodies of Nigeria (APBN) has played a vital role as an umbrella body of recognised professional Institutes, Institutions and Associations promoting a new era of cooperation among professionals in Nigeria. APBN is set up to speak with one voice on behalf of its member-bodies while at the same time giving professional and proper technical advice to Government on matters affecting the professionals and their practices. It is the organization of professional bodies, whose main objective is to provide Nigeria with an effective forum for transmitting to Government the aggregate views of the nation’s Professionals on matters of public interest in which they are competent to express informed and enlightened views.[25] Thus APBN has a duty to ensure that every professional association that is a member of APBN maintains the highest standards of ethics and professionalism.

7.3 May I profusely thank you distinguished officers and members of APBN for inviting and granting me your highly esteemed platform to address the distinguished Ladies, Gentlemen and even members of the press here present. I only hope I have added value to the body of knowledge and create a little more enlightenment. If the lecture is short of that please pardon me but I plead with you all that life with code and or ethical consideration is worthless and strict compliance with issues of ethical consideration not only make life meaningful, and interesting nut holds our common humanity together to guarantee our future.


7.4 Every Professional body owe their existence to the state, whether created directly by an Act of National Assembly or by being registered with the Corporate Affairs Commission under Part C of CAMA which in itself is a Statute of the National Assembly.


7.5 The first and most important duty of a professional and by extension Professional body is to the state. The professional body must be contributing to development, body of knowledge and or peaceful existence of the state and its people. This duty, most times, is overlooked even by lawyers and other professionals. The level of patriotism expected of a professional is higher than that expected of the ordinary man on the street. You must know that you constitute part of the critical knowledge and asset of your country. In this respect, your services can even be engaged with or without renumeration. In situations like in an emergency, your country and your code of conduct places such demands on you. So, professionals are part of the forces of stability in a Nation and I know APBN is in this class of Professional bodies holding such professionals as members. Where anarchy reigns, professionals can not practice their profession the way it should. So, I enjoin you all not to abandon your country because professionals like you are the ones who created the enabling environment in the other countries that are now attractive to you. Your nation needs you in times of peace or war and your professional calling places such duty on you. To whom much is given, much is expected.


8 CONCLUSION

8.1 Every profession is also a form of business, so integrity and professionalism are very important for the survival of the business. Unless the public have faith in the practitioners of the profession, the business aspect of it is jeopardised. Every profession must guard jealously the integrity of the practitioners from the point of application for membership and throughout the period that the member is in practice. As the society grows and in the digital age, professional bodies must continue to review and update its code or rules of professional practice and where necessary propose amendment to the statue that established it. This will ensure that the professionals carry out their practice in accordance with international best practices.

8.2 Pursuant thereto, I once again commend the APBN for their services to Nigeria and its people in several respects.

8.3 I thank you all for your patience and your time.


God bless.

Oladipo Okpeseyi, Esq, SAN, FCIArb(UK), FNIM, FCTI


Lagos: 8, Aromire Road, Ikoyi-Lagos.

Abuja: House 18, Aso Garden Estate, River Trent Street off Thames Street, Alvan Ikoku way, Maitama, Abuja-FCT.

24th July,2019

ACKNOWLEDGEMENT


I specially thank Almighty God as my fountain of knowledge and wisdom for the time, efforts, available resources put into this works. I would like to express my deepest appreciation to all those who have in one way or another provided me with the possibility to complete this work.


I owe the following faculties a debt of gratitude for their immense contributions to the work namely, Sylvester O. Imhanobe, Esq, LL.B., B.L., LL.M., former Lecturer of the Nigerian Law School, Former Special Assistant to President Muhammadu Buhari, GCFR on Research and Special Project Principal Partner at Sylvester Imhanobe & Co, a firm of legal Practitioners and Member, Council of Legal Education, Abimbola Akintola, LL.B., B.L., Adeniyi Aderinboye, Esq, LL.B., B.L. of Dipo Okpeseyi & Co and others who supplied logistics support.


Thank you all.













References:

· The New International Webster’s Comprehensive Dictionary of the English Language Usage.

· Chambers English Dictionary (1990).

· Black’s Law Dictionary 9th Edition.

· The Constitution of the Federal Republic of Nigeria. 1999 (as amended).

· Gani Fawehimi V. Nigerian Bar Association (No. 2) (1989) 2 NWLR [pt.105] 558.

· Rules of Professional Conduct for Legal Practitioners 2007.

· Legal Practitioners Act, CAP L11, LFN 2004.

· N.B.A V. Ohioma (2010) 14 NWLR (pt. 1231) 641 @ 680.

· Rondel V. Worsley (1967) 1 Q.B 443.

· Magit V. University of Agriculture, Makurdi & Ors (2005) LPELR-1816(SC).

· Legal Practitioners Disciplinary Committee V. Gani Fawehimi (1985) 2 NWLR [pt. 7] 300.

· Nigeria Bar Association V. Akintokun (2006) 13 NWLR [pt. 996] 167.

· Dr. Denloye V. Medical and Dental Practitioners Disciplinary Committee (1968) 1 ALL N.L.R. 306; NSCC 260.

· Anyankpele V. Nigerian Army (2000) 13 NWLR (pt. 684).

· Armed Forces Act Cap A20 LFN 2004.

· Medical and Dental Practitioners Disciplinary Tribunal V. Okonkwo (2001) 7 NWLR (pt.711) 206.

· I.H.A.B.U.H.M.B. V. Anyip (2011) 12 NWLR (pt. 1260).

· Nduke V. Legal Practitioners Disciplinary Committee & Anor (2007) LPELR-1978 (SC).

· Garba V. University of Maiduguri (1986) 1 NWLR [pt. 18] 550.

[1] (a)Institute of Chartered Accountants of Nigeria Act, Cap I11, Laws of the Federation of Nigeria 2004 (b)Institute of Chartered Chemists of Nigeria Act, Cap I12, Laws of the Federation of Nigeria 2004. (c)Institute of Chartered Secretaries and Administrators Act, Cap I13, Laws of the Federation of Nigeria 2004. (d)Institute of Medical Laboratory Science and Technology Act, Cap I14, Laws of the Federation of Nigeria 2004. (e)Institute of Personnel Management of Nigeria Act, Cap I15, Laws of the Federation of Nigeria 2004. (f)Legal Practitioners Act, Cap LI1, Laws of the Federation of Nigeria 2004. [2] The present Rules of Professional Conduct for Legal Practitioners were made on 7th February 2007 by Chief Bayo Ojo, Attorney General of the Federation and Minister of Justice pursuant to his powers in Section 12(4) of the Legal Practitioners Act. [3] It is the paramount duty of every professional to devout his attention, energy and expertise to the service of his client and to act in a manner consistent with the best interest of the client. [4] Professionals are expected to treat one another with respect, fairness and dignity. [5] The paramount duty of every professional is duty to the State and it prevails over every other duty. [6] Rules of Professional Conduct for Legal Practitioners 2007 [7] Rule 2 RPC Ibid [8] Rule 22 ibid [9] Rule 3 (1) (a)ibid [10] Rule 6 (1) ibid [11] Rule 7 (2) (3) ibid [12] Rule 23(1) ibid [13] Rule 23(2) ibid [14] Rule 23 (1) ibid [15] This Committee is established Pursuant to the Legal Practitioners Act [16] (1967) I QB 443 [17]For example, Section 11 of the Institute of Chartered Accountant Act; Section 15 of the Medical and Dental Practitioners Act; Section 11 of the Institute of Chartered Chemists of Nigeria Act; Section 11 of the Institute of Chartered Secretary and Administrators of Nigeria Act; Section 11 of the Institute of Medical Laboratory Science and Technology Act; Section 11 of the Institute of Personnel Management of Nigeria Act and Section 11 of the Institute of Public Analysis of Nigeria all established the Disciplinary Tribunal and Investigative Panel. [18] Rule of Procedure Royal Navy BR11 (1972) [19] Rule of Procedure Royal Air Force (1972) [20] (2000) 13 NWLR (PT.684) [21] CAP L11 LFN 2004 [22] (2001) 7 NWLR (Pt.711) 206 [23] Armed Forces Act Cap A20 LFN 2004 [24] apbn.org.ng assessed on 16 July 2019 [25] apbn.org.ng assessed on 16 July 2019.

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