1971-LCER-612-SC


Other Citations

(1971) LPELR-1505(SC)


In The Supreme Court of Nigeria

On Friday, the 21st day of May, 1971

SC.21/05/1971

Before Their Lordships

GEORGE BAPTIST AYODOLA COKER Justice of The Supreme Court of Nigeria

CHARLES OLUSOJI MADARIKAN Justice of The Supreme Court of Nigeria

GEORGE SODEINDE SOWEMIMO Justice of The Supreme Court of Nigeria


Between

IN RE: ABUAH

Appellant


HELD:

We have come to the conclusion that the present application must again be refused. We are not satisfied that sufficient time has elapsed between April 1962 and now, having regard to the nature of the offences committed by the applicant, to satisfy the court that he has become a changed man, and no facts have been brought to our attention to establish those circumstances which must and have indeed wrought in him the alteration which was necessary. Similarly, we are of the view that no material worthy of consideration has been placed before us to warrant our decision that he has now become a fit and proper person to get his name restored to the roll of legal practitioners in Nigeria.


COKER, J.S.C. (Delivering the Leading Judgment): This ruling is sequel to an application by Alfred Chukwuemeka Abuah for – “an order of this Honourable Court to reinstate the applicant’s name on the Roll of Legal Practitioners in Nigeria.” The application is stated to have been pursuant to the provisions of section 9(1)(a) of the Legal Practitioners Act, 1962. Section 9 of that Act provides as follows:- 

“(1)Where either before or after the passing of this Act the name of any person has been struck off the roll or a person has been or is deemed to have been suspended from practice, he may, subject to the provisions of the following subsection, make an application for the restoration of his name to the roll or the cancellation of the suspension:-

(a) if the striking off or suspension was ordered by the Chief Justice or the Federal Supreme Court, to that Court; and

(b) in any other case, to the tribunal.

(2) A direction under subsection (1) of section seven of this Act or subsection (1) of the last foregoing section may prohibit an application under the foregoing subsection until the expiration of the period specified in the direction; and where such an application is duly made to the Federal Supreme Court or the tribunal, the Court or tribunal may direct that no further application shall be made under the foregoing subsection until the expiration of the period specified in the direction under this subsection.”

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Reading the whole of section 9 together, it is manifest that the discretion of the court should be brought to bear on the matters therein contained. Clearly also such exercise of discretion as postulated by the two sub-sections puts into focus the circumstances giving rise to the application before the court. 

The present application has been brought barely two weeks after a previous application was struck out by this court for lack of substance, the point being that the affidavit in support of that application was hopelessly meagre. Attached to the present application is an affidavit telling in full, more or less, the story of the applicant and the circumstances which led to the excision of his name from the roll of legal practitioners in Nigeria by the decision of the Federal Supreme Court on April 30th, 1962. He had been convicted of offences under ss. 419, 467 and 468 of the Criminal Code, the subject matter of the crimes being property of his client unlawfully obtained and subsequently misappropriated by him. He was tried by Kaine, J. in the High Court, Aba and convicted on May 24th, 1961. His appeal to the Federal Supreme Court against his conviction was dismissed on October 30th, 1961. In its judgment the Federal Supreme Court reviewed the circumstances of the offences in respect of which the applicant was charged. On April 30th, 1962, pursuant to proceedings initiated under the provisions of the Legal Practitioners Ordinance (Cap. 101), the Federal Supreme Court ordered that the name of the applicant be struck off the roll of legal practitioners in Nigeria and that this direction be communicated to the benchers of the honourable society in England to which he belonged. In the course of the ruling of the Federal Supreme Court, the following observation appears apparently in answer to the plea of counsel against the striking off of the applicant’s name:

“It was urged upon us that striking off the name of this man from the roll will be meting out to him a second punishment after his conviction for the offences he was charged with. We cannot accept this. His name will not be struck off as a second punishment but because he is not a fit and proper person to continue in the practice of an honourable profession.”

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That was in 1962 and four years later the applicant made an application for restoration of his name to the roll. The Supreme Court, which heard the application, dismissed it on January 14th, 1966. In the course of the ruling on that application, the Supreme Court observed as follows:-

“As this Court had not given any direction under section 9(2) of the Legal Practitioners Act, 1962 prohibiting the present applicant from applying until after the expiration of a certain period, he was at liberty to apply at any time for his name to be restored to the roll, but it is desirable to bear in mind that if it was considered that a legal practitioner whose name had been struck off was to be at liberty to ask that his name be restored after a few years or was not to practice for that period only, the Court could have suspended him for that period, instead of striking his name off the roll.”

It is pertinent to observe that in this passage the Supreme Court emphasized the difference in substance between the punishment of suspension which prescribes a time limit and the punishment of removal of a practitioner’s name. The Supreme Court then stated that considering the gravity of the offences which the applicant had committed, it would be undesirable to accede to his application. The court pointed out that – “it would be disastrous for the profession if the idea was allowed to gain ground that a few years’ suspension was all that would result from professional misconduct of this gravity.”

This court is now faced with the present application in support of which learned counsel appearing for the applicant had made a most moving plea. On the other hand the learned legal adviser to the Legal Practitioners Disciplinary Tribunal has invited us to consider whether, on the one hand, a sufficient period of time within which the necessary change in the conduct of the applicant should take place had been shown, and on the other hand whether the Court is now satisfied that the applicant is a fit and proper person to be admitted to the bar of this Court. The plea on behalf of the appellant clearly overlooks the fact that in these cases the court is not entitled to act ad misericordiam.

The principles upon which the honour of the profession hangs must be paramount in the mind of the court as well as the question whether at the time of the application the court is satisfied that the applicant by virtue of the circumstances which have transpired in the period during which he was laid off has now become a fit and proper person to be restored to the roll. Cases of professional misconduct vary enormously and it is the duty of the court in every case to analyse each and every case in order to ascertain its degree of moral depravity and the severity with which it has struck at the reputation of an honourable profession. So when we look at the case of In re Adesanya SC/130/1964 (unreported), which was cited to us in argument, we find that that was a case (nevertheless deemed to be one of professional misconduct and punished as such) where an over- zealous lawyer had committed crimes against the property of other persons in order to assist his own clients. The present case is easily distinguished from that one and it would be perverse to pretend not to see the distinction between that one and the present case in which the applicant forged a Power of Attorney in order to entitle himself to withdraw his own clients’ money unlawfully from the court, and by virtue of that forged power of attorney the money of the client – a comparatively small amount belonging apparently to a poor client of his – was withdrawn and pocketed by the applicant.

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The affidavit in support of the present application depicts the most pitiable story of hardship and misery. But it perhaps unwittingly fails to answer the relevant question as to whether or not he is a fit and proper person to associate with the members of an honourable profession. We do not propose to lay down any hard and fast rule as to the form such an application should take or the matters to be contained in such affidavit or indeed the time within which such an application should be brought. These are matters which must depend on circumstances which in turn must depend upon the peculiar facts of each case.  But it is desirable to warn that applications for restoration brought within short periods of removal are unwise because, at the least, the story of the rape of the profession by the applicant is still fresh in the mind of the court.

Again, whether a person is a fit and proper person to be admitted into the membership of an honourable profession is a matter predominantly of fact and it is invidious to ascribe to the person concerned the competence to say as much. There may be a number of other matters and circumstances to be taken into consideration, but we have pointed in this ruling to those on which we have decided to dispose of the present application. We think it only right to point out firmly, and may be sternly, that those who desire to associate in professions which demand a high degree of honour and reputation must be prepared to keep and maintain the avowals of their profession.

We have come to the conclusion that the present application must again be refused. We are not satisfied that sufficient time has elapsed between April 1962 and now, having regard to the nature of the offences committed by the applicant, to satisfy the court that he has become a changed man, and no facts have been brought to our attention to establish those circumstances which must and have indeed wrought in him the alteration which was necessary. Similarly, we are of the view that no material worthy of consideration has been placed before us to warrant our decision that he has now become a fit and proper person to get his name restored to the roll of legal practitioners in Nigeria.

The application is dismissed.

Application dismissed.


Counsel

Mr. Agusto For Appellant

And

Mr. Williams — For Respondent


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