As the NBA pushes for a new route through the Court of Appeal, the three-year suspension of Joe-Kyari Gadzama, SAN, has become an early test of what sanctioned lawyers can do after the Supreme Court closed the old appellate pathway.
PORT HARCOURT — When NBA President Afam Osigwe, SAN, told lawyers at the Association’s Annual General Meeting that practitioners affected by recent decisions of the Legal Practitioners Disciplinary Committee would have to consult their lawyers about what to do next, the warning carried a significance beyond the conference hall.
A prominent test case was already taking shape in Abuja.
Chief Joe-Kyari Gadzama, SAN, has challenged a three-year suspension imposed on him by the LPDC following disciplinary proceedings arising from the long-running dispute over compensation for victims of the 2001 Zaki-Biam military operation in Benue State.
On August 20, Justice Obiora-Atuegwu Egwuatu of the Federal High Court in Abuja granted Gadzama leave to seek judicial review of the LPDC’s July 29 Direction and an order of certiorari to quash it.
The court’s order did not overturn the suspension or find that the disciplinary committee acted unlawfully. It simply cleared the way for Gadzama to bring his substantive application. The respondents are yet to present their case. The matter is expected to come up on September 4, subject to service of the relevant processes.
For the legal profession, however, the case has arrived at a particularly consequential moment.
The NBA is itself seeking a legislative solution to an emerging problem over how lawyers can challenge LPDC decisions following the Supreme Court’s intervention in the statutory provision that had provided for direct appeals to the apex court.
Gadzama’s case now gives that problem a live courtroom setting.
The route that disappeared
The uncertainty stems from Section 12(7) of the Legal Practitioners Act, which provided for appeals from LPDC Directions to the Supreme Court.
Osigwe told the AGM that the Supreme Court had held that ordinary legislation could not confer appellate jurisdiction on the apex court outside the constitutional framework governing its jurisdiction. The effect, he said, was to leave lawyers affected by LPDC decisions facing uncertainty over the appropriate route for challenging them.
The NBA’s proposed answer is to move the first appeal to the Court of Appeal.
The Association has submitted a memorandum to the Attorney-General of the Federation and Minister of Justice proposing an amendment to the Legal Practitioners Act that would provide an appellate route from the LPDC to the Court of Appeal, with any further appeal proceeding to the Supreme Court in accordance with the Constitution.
Osigwe also disclosed that the NBA had engaged lawmakers in an effort to advance the proposal.
“We have made that suggestion,” he told delegates, expressing hope that the amendment would be dealt with quickly.
The proposal would give practitioners a conventional appellate pathway rather than leaving them to explore remedies whose availability and scope may have to be tested in individual cases.
Then Gadzama went to court
Gadzama’s proceedings have put the problem into immediate focus.
The LPDC’s July 29 Direction suspended him from legal practice for three years and directed that the Chief Registrar of the Supreme Court give effect to the suspension and make the appropriate notation against his name on the Roll of Legal Practitioners.
The committee also directed that its decision be communicated to the Chief Justice of Nigeria, the President of the Court of Appeal, heads of superior courts, the NBA, the Attorney-General of the Federation and other relevant authorities.
The disciplinary proceedings followed a complaint by Chris Alashi arising from the dispute over compensation for victims of the 2001 Zaki-Biam military operation.
In its 70-page Direction, the LPDC found Gadzama liable for professional misconduct and made findings concerning his conduct in relation to the representation of parties involved in the compensation dispute.
Among other things, the committee considered allegations concerning interference with existing client relationships and representation of some judgment creditors who subsequently denied instructing him.
Gadzama is challenging those findings.
They should therefore remain described as findings of the disciplinary committee rather than settled facts against him while the judicial proceedings are pending.
His application before the Federal High Court is not an ordinary appeal against the LPDC’s conclusions. He is asking the court to exercise its supervisory jurisdiction and quash the Direction through judicial review.
Judicial review is not an appeal
That difference could become one of the central issues in the case.
An appeal ordinarily invites a higher court to review the decision of a lower tribunal or court on the law and, depending on the circumstances, the facts and evidence before it.
Judicial review operates on a different footing.
Through certiorari, Gadzama is asking the Federal High Court to examine the legality of the LPDC’s decision-making and, if the requirements for the remedy are established, quash the Direction.
The application is therefore not simply a request for another court to reconsider the disciplinary case and reach its own conclusion on the evidence.
The Federal High Court will have to consider questions including whether the LPDC’s Direction is amenable to judicial review in the circumstances and whether the court has jurisdiction to grant the relief sought.
Those issues have not yet been determined.
The August 20 order merely granted permission for the substantive proceedings to begin.
A disciplinary system caught between two courts
The timing places the Gadzama case alongside the NBA’s proposed legislative reform.
The Association wants Parliament to create a clear appellate route through the Court of Appeal. Gadzama, meanwhile, is asking the Federal High Court to exercise its supervisory jurisdiction over the disciplinary process.
Neither development, at this stage, provides a definitive answer for every lawyer affected by an LPDC Direction.
The proposed amendment has not yet become law.
And the Federal High Court has not yet decided whether Gadzama is entitled to the relief he seeks.
That leaves the profession confronting a period in which disciplinary power remains firmly in place while the route for challenging its exercise is being worked out.
For lawyers, the stakes are substantial.
An LPDC Direction can affect the right to practise, professional reputation and livelihood. Any disciplinary regime therefore has to accomplish two things at once: give the profession an effective mechanism for dealing with misconduct while preserving a credible means of correcting legal or procedural error.
The challenge is to achieve both without allowing either disciplinary proceedings or challenges to them to become endless.
What September 4 could bring
The next stage of Gadzama’s case will be closely watched because it may offer the courts an opportunity to address some of the questions created by the changing appellate landscape.
But it would be wrong to expect the case alone to settle the broader problem.
A ruling in Gadzama’s favour would not automatically create a general statutory right of appeal from LPDC decisions to the Federal High Court. Nor would the grant of leave itself establish judicial review as the permanent substitute for an appeal.
What it does provide is a live judicial test of a route that a lawyer facing an LPDC sanction has chosen to pursue at a time when the statutory appellate framework is under review.
That is precisely the uncertainty Osigwe was warning lawyers about at the AGM.
“I’m not going to give you any legal advice,” he told delegates after advising those affected to consult their lawyers.
It was an unusually cautious answer from the head of a profession accustomed to finding answers in statutes, precedents and procedural rules.
This time, the question is partly about the rules themselves.
The NBA wants Parliament to build a new appellate road through the Court of Appeal.
Gadzama has taken another route to the Federal High Court.
On September 4, the court is expected to begin considering where that road leads.
