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2019) Lpelr-46916(Sc NWALUTU v. NBA & ANOR CITATION: (2019) LPELR-46916(SC) In the Supreme Court of Nigeria ON THURSDAY, 21ST FEBRUARY, 2019 Suit No: SC.30/2016 Before Their Lordships: WALTER SAMUEL NKANU ONNOGHEN Justice of the Supreme Court OLUKAYODE ARIWOOLA Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court EJEMBI EKO Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court Between OBIAJULU NWALUTU - Appellant(s) And 1. NIGERIAN BAR ASSOCIATION 2. LEGAL(2019) PRACTITIONERS LPELR-46916(SC) DISCIPLINARY - Respondent(s) COMMITTEE RATIO DECIDENDI 1. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of issue(s) for determination not distilled from or related to ground(s) of appeal "Since the appellant did not file a reply in answer to the preliminary points raised by the 1st respondent, he is deemed to have admitted that issue 1 was not distilled from any of the grounds of appeal and so is incompetent; also no issue was formulated from ground 2 and the said ground is deemed abandoned. It was held in Bakare v. L.S.C.S.C (1992) 8 NWLR [Pt. 26) 641 that an appeal Court will refuse to consider and pronounce on an issue formulated for determination which does not arise from the grounds of appeal filed. See: Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260; Adejugbe v. Ologunja (2004) 6 NWLR (Pt. 868) 668; Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671. Issue 1 is incompetent and ground 2 of the Notice of Appeal is deemed abandoned. They are struck out."Per AKA'AHS, J.S.C. (Pp. 6-7, Paras. E-B) - read in context 2. COURT - COMPOSITION OF COURT: Effect of a variation in the composition of a court/tribunal "Apart from the composition of the Committee, learned counsel for the appellant argued that where the panel that sat and heard a matter is different from the panel that delivered judgement in the same matter, the effect on the proceedings is to render them null and void. Learned counsel for the respondents conceded that the membership of the 2nd respondent varied and that it is only the Chairman that was constant in all sittings but argued that since the quorum of the Committee was 5 and that number was retained throughout, the proceedings and direction are valid and proper, as it did not occasion a miscarriage of justice on the appellant. Learned counsel for the respondents relied on Alhaji Ahmed Garba Bichi & Ors v. Alhaji Ibrahim Shekarau & Ors (2009) LPELR 3874 (CA); 2009 7 NWLR (Pt. 1140) 311. This case dealt with an election petition where the 1999 Constitution, the Schedule to the Constitution and the Schedule to the Electoral Act, 2006 provided for the composition and quorum of the National Assembly and the Governorship and Legislative Houses Election Tribunals. Section 285 (3) and (4) of the 1999 Constitution provides:- "285(3) The composition of the National Assembly Election Tribunal, Governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule to this Constitution. (4) The quorum of an election tribunal established under this section shall be Chairman and two other members". Paragraphs 24 (2) and 26 (2) of the First Schedule to the Electoral Act, 2006 read as follows:- "24(2) If the Chairman of the tribunal or Presiding Justice of the Court who begins the hearing of an election petition is disabled by illness or otherwise, the hearing may be recommended and concluded by another Chairman of the tribunal or Presiding Justice of the Court appointed by the appropriate authority. 26(2) After the hearing of the election petition is concluded, if the Tribunal or Court before which it was heard has prepared its judgment but the Chairman or the Presiding Justice is unable to deliver it due to illness or any other cause, the judgement may be delivered by one of the members, and the judgment as delivered shall be the judgment of the Tribunal or Court and the member shall certify the decision of the Tribunal or Court to the Resident Electoral Commissioner or to the Commission". Since a quorum was formed with the Chairman and proceedings had been taken up to when judgment was written, a new Chairman in the absence of the original Chairman could be appointed to deliver the judgment. In contrast with the above provisions, Section 11(2) of the Legal Practitioners (Amendment) Decree No. 21 of 1994 enumerates the persons who can constitute the Legal Practitioners Disciplinary Committee without stating how many of them can form a quorum. Notwithstanding the fact that the Chairman was present throughout from the time the appellant took his plea in which he denied being liable to the charge of professional misconduct right up to the delivery of the direction the proceedings were tainted by the change in the composition of the Committee. One of the Committee members, Amina Dyeris-Sijuade was present only once on 30 November, 2015, the date the final direction was delivered (see page 285 of the records). It was only J. B. Daudu Esq. the Chairman and Tijjani Inuwa-Dutse, a member that were present throughout the proceedings. Where a Court of tribunal is differently constituted during the hearing of the case, or on various occasions when it met, or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. See: Adeigbe & Anor v. Kusimo & Ors (1965) All NLR 260; Ubwa v. Tiv Traditional Council & Ors (2004) 11 NWLR (Pt. 884) 427; Sokoto State Government v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466."Per AKA'AHS, J.S.C. (Pp. 21-25, Paras. F-B) - read in context 3. COURT - COMPOSITION OF COURT: Effect of a variation in the composition of a court/tribunal "I have to add that the current law applicable to the composition of the Legal Practitioners Disciplinary Committee of the Body of Benchers, inter alia, is Legal Practitioners Act, 2004 (incorporating the provisions of the Legal Practitioners) Amendment Decree No. 21, 1994) published as Supplementary to the Laws of the Federation, 2004 which made the Committee that dealt with this matter properly constituted and clothed with the necessary jurisdiction to hear and determine the complaints of professional misconduct against appellant. However, the problem in this appeal lies in panels that heard the matter being different from that which eventually delivered the decision. It(2019) is the contention of appellant LPELR-46916(SC) that this is a fundamental defect which renders the proceedings and decision reached therein a nullity. The record of proceedings reveals that the membership of the 2nd respondent varied at the sittings except the Chairman of the Committee who sat throughout the trial of appellant. This fact is not denied by the respondents. What the above facts mean is that it was not all the members of the Committee that heard the witnesses testify nor watched their demeanour. It is settled law that where a Court or tribunal or panel or committee is differently constituted, as in this case; during the hearing/trial of a case or on various occasions when it sat, or where one member did not hear the whole evidence, again as in this case, the effect on the proceedings including the decision arrived therein is to render them null and void and of no legal effect whatsoever. See Ubwa vs. Tiv Traditional Council & Ors (2004) 11 NWLR (pt. 884) 427; Sokoto State Government vs. Kamdex (Nig) Ltd (2007) 7 NWLR (pt. 1034) 466."Per ONNOGHEN, J.S.C. (Pp. 27-29, Paras. F-C) - read in context 4. COURT - COMPOSITION OF COURT: Effect of a variation in the composition of a court/tribunal "I need only add that a Disciplinary Committee comprising several members cannot be said to have, as a body, given a Legal Practitioner being tried for infamous conduct fair trial if, as it is revealed in this case, only one member (the Chairman of the Committee) consistently sat and took evidence on all the dates the witnesses testified. The issue is not whether the Committee, as constituted, had the proper quorum. Rather, it is whether the members of the Committee, except the Chairman, who did not hear all the evidence constituting the totality of the evidence in the proceedings can, with all honesty, decide whether or not the Appellant committed the alleged misconduct or infamous conduct on the evidence they did not hear the witnesses testify on. The point I am emphasising is that the Legal Practitioners Disciplinary committee (LPDC) is not an appellate, but a first instance panel. On what evidence does the absentee panelist evaluate the totality of the evidence before coming to his decision? This Court in several decisions, including DIM v. ENEMO (2009) 42 WRN 1, (2009) 10 NWLR (pt. 1149) 353 at 396, has established what evaluation and ascription of probative value to the testimony of a witness entails thus: The evaluation and ascription of probative value to the testimony of a witness is within exclusive domain of the trial Court that heard and watched the witnesses testify before it. To determine whether a testimony has probative value, the Court takes into consideration whether the testimony is cogent, consistent and in accord with reason and in relation to other evidence before it. The Court takes into consideration the demeanor, personality, under cross- examination in the determination of the issue of credibility of a witness. A determination of the Court of credibility is almost sacred. See also ONWUKA & ORS v. EDIALA & ORS (1989) 1 NWLR (pt.
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