Good day ladies and gentlemen. I welcome you to October’s edition of our Law History Series, which has always been about unearthing unknown facts in the legal profession, discussing historical events in the legal profession, and also celebrating legal luminaries.
This month, has been a memorable one for us in Nigeria as so many events have taken place, such as Nigeria’s 60th Independence celebration and the #EndSARS protests.
This month we will be talking about how one of the greatest court battles in the history of Nigeria between Chief Gani Fawehinmi SAN and Lega Practitioners Disciplinary Committee (LPDC).
The irrepressible learned silk was known for his fight against abuse of fundamental human rights, injustice, military rule, and promoting legal education, but while doing this, he encountered so many things both good and bad, and one of those things will be our talking point for today.
Gani was a fighter who was not afraid to stand alone. And that’s what he did in this story as he alone against the legal establishment in Nigeria. While the Nigerian Bar was represented by the formidable F. R. A Williams the first Lawyer to be conferred with the SAN title alongside Graham Douglas SAN who led other bright stars of the Bar like G. C. M. Onyiuke, SAN; Kehinde Sofola, SAN; E. A. Molajo, SAN; and FRA Williams (Jnr), Gani stood on the other side, all alone.
The fundamental question is what led to the story we are about to talk about? Well, it all started on the 23rd of March, 1981, when the defunct West Africa magazine carried an advertorial announcing the publication of Chief Gani Fawehinmi’s new book, which was accompanied with a picture depicting Gani sitting down on a chair wearing his wig and gown and holding a bulky book which has the inscription of Nigerian Constitutional Law Reports on it.
The advertisement ran like this:
“A NEW BOOK ON NIGERIAN CONSTITUTION TITLED NIGERIAN CONSTITUTIONAL LAW REPORTS 1981 Volume One Edited by Chief Gani Fawehinmi, The famous, reputable and controversial Nigerian Lawyer.”
Our non-lawyers readers might be wondering how this is a problem considering it was just an advert. It might interest you to know that in the Nigerian Legal profession, a legal practitioner is not allowed to engage in such an act as it is against the ethics of the legal profession.
In the aftermath of this advertisement, the lawyers in Nigeria reactions was best captured by Onigegewura in his article wherein he mentioned that:
“THE LEGAL ESTABLISHMENT IN NIGERIA MUST HAVE READ THE ADVERTISEMENT A MILLION TIMES! THE FAMOUS, REPUTABLE, AND CONTROVERSIAL NIGERIAN LAWYER! WHAT AUDACITY! WHAT INSOLENCE! FAMOUS! REPUTABLE! CONTROVERSIAL! HAVE THE RULES OF PROFESSIONAL CONDUCT BEEN AMENDED? LAWYERS RAN TO THEIR LIBRARIES TO CHECK THE RPC. NO, IT HAD NOT BEEN AMENDED. IT WAS STILL THERE IN BLACK AND WHITE. IT WAS, IN FACT, RULE 33.”
In reacting to this, the Nigeria Bar Association led by Chief Adetunji Fadayiro SAN resolved that the conduct of Chief Gani Fawenhinmi as regards his “self-advertisement” would be referred to the Legal Practitioners Disciplinary Committee(LPDC). The LPDC serves as the Lawyer’s court in any circumstance whereby a lawyer does something which is regarded as “unethical or misconduct.” It is this committee that will hear such a matter.
That’s where Gani was to be taken to for advertising himself or causing himself to be advertised as a famous, reputable, and controversial Nigerian Lawyer. And as at that time, Gani was less than 17 years at the Bar.
On the 1st of December, 1981, Gani Fawehimi was in his chambers at Sabiu Ajose Crescent in Surulere when he was served with a letter from the Office of the Attorney General of the Federation, Federal Ministry of Justice. At the time, the Ministry was in Ikoyi, Lagos. The letter was signed by Mrs. O. O. Fatunde on behalf of the Solicitor General of the Federation and Permanent Secretary of the Ministry.
The letter informed Gani that the attention of the Hon. Attorney General of the Federation and Minister of Justice had been drawn to the advertisement in the magazine I told you about. The Honourable Attorney General requested Gani to show cause by way of written explanation why the matter should not be referred to the LPDC for appropriate action.
The ‘famous, reputable, and controversial’ legal practitioner was given 14 days to respond. However, on the 3rd of December, the same Mrs. Fatunde drew up a formal charge against Gani. It was a two-count charge. Under count one, Gani was alleged to have contravened Rule 33 – by commercially advertising the importance of his position as a lawyer in Nigeria by describing himself as “the famous, reputable and controversial Nigerian lawyer.” Under count two, Gani was accused of contravening Rule 34. He was informed that his case would be heard by the LPDC on the 25th of January, 1982.
Now, this is very important. How many days was Gani given to respond to the first letter? 14 days! You are right. Second question, what was the date of the letter? The 1st of December. So by the logic of simple arithmetic, Gani ought to have been allowed till the 14th of December before any action was taken, right?
Gani, who was in the process of responding to the initial letter, was naturally shocked to receive the charge – two days after the service of the letter. He checked the calendar. He still had more than ten days! Why the haste? Who was in a hurry to see him in the dock? It was this haste in the framing of the charges which excited his suspicion and put him in fear, leaving him in doubt as to whether his trial would be fair.
On the 25th of January, Gani went to the Nigerian Law School in Victoria Island, where the LPDC proceedings would take place. Immediately his case was called, and he saw that Chief Richard Akinjide, who was the Federal Attorney General, was also the Chairman of the LPDC; Gani knew that his hen would never get justice in the court of the fox. Chief Akinjide told him that his case would be adjourned to the 22nd of February, 1982, when his trial would begin.
On leaving the Law School, Gani did not bother to go home. He headed straight to the Lagos High Court. You know that Gani was clever. He did not alert the other party about what he wanted to do. He filed an ex-parte motion for the enforcement of his fundamental right.
Two days later, he was back in court to argue his application before My Lord Justice Ademola Candide Johnson. In arguing his application before His Lordship, Gani submitted that he was doubtful of getting a fair hearing before the LPDC.
Now, let me explain further as regards why Gani was certain that he wouldn’t get a fair hearing. The Attorney General of the Federation, Chief Richard Akinjide, SAN as at that time was the one whose office is prosecuting Gani, remember Mrs. Fatunde, who drafted the charge, was a counsel in the Office of the Attorney General, which is to the effect that the Attorney General was by the letter of the 1st of December, the accuser. The Attorney General, by the charge of the 3rd of December, was also the prosecutor, and at the same time, the Attorney General was the one who is heading the LPDC being their Chairman!!
How can you be the accuser, prosecutor, and judge at the same time??
Furthermore, this is a clear contravention of the rule of fair hearing, which is premised on the two maxims, which are Audi Alteram Partem(Listen to both parties) and Nemo Judex Incasa Sua( a man cannot be a judge in his own case).
His Lordship listened to the famous, reputable, and controversial Lawyer. To Gani’s eternal relief, Justice Candide Johnson agreed with him. My Lord was satisfied that there was merit in his application. The court ordered the LPDC to ‘stay further proceedings in respect of the charges against the applicant until Gani’s substantive application was finally determined.’
It was a very proud Gani that went to court the following day to file his motion on notice. This was to formally notify the LPDC that he was challenging its competence to try him on the charges as framed and on the panel as constituted. Upon being served with the order and the application, the LPDC constituted a team of formidable legal practitioners to represent its interest.
On the 25th of February, 1982, the two parties appeared before His Lordship. Gani’s friend and fellow activist, Dr. Olu Onagoruwa, led the counsel appearing for Gani. The LPDC team was led by the legendary FRA Williams SAN. Though the matter was strictly between Gani and the LPDC, almost every Lawyer in Lagos was in court on that day. Gani was just seventeen years old at the Bar. His future in the profession hung precariously on the outcome of the suit.
I can see you shaking your head in disbelief.
Gani’s case was, therefore, straightforward. According to him, “As a result of the part played by the Attorney General of the Federation in bringing the complaint and charges to the Legal Practitioners Disciplinary Committee, there is a real likelihood of bias on his part as Chairman of the Disciplinary Committee in the consideration and the determination of the said complaint and charges.”
At the hearing before Justice Candide Johnson, both parties put up a spirited argument in support of their respective case. At the conclusion of the hearing, Justice Johnson decided the case in favour of Gani. That was not all. His Lordship also came down heavily on the composition of the LPDC. In prohibiting the Committee as constituted from proceeding to try Gani, His Lordship found that there was a real likelihood of bias if the Committee was allowed to determine the charges against Gani.
According to His Lordship: “…neither the members of the Executive Committee present at the meeting held at Calabar on the 25th of April, 1981 nor the Attorney General of the Federation is competent to sit on the Disciplinary Committee if the provision of section 33(1) of the Constitution is to be preserved and enforced.”
The matter was taken to the Court of Appeal in order to challenge the decision at the Court of Appeal.by the NBA, but Gani still ended up being victorious. However, the match was not yet over!
LPDC was still not satisfied. They decided to take Gani Fawehinmi to the Supreme Court for the greatest of all battles. Chief FRA Williams, who led three other senior advocates and one junior, put up a brilliant performance before the Apex Court. According to the former Attorney General of the Western Region, the function of the LPDC was to set the ball of disciplinary proceedings in motion, and this was basically an administrative function. The foremost legal practitioner cited many landmark decisions from the House of Lords in the United Kingdom as well as from the Supreme Court of the United States in order to persuade the Court to upturn the decisions of the lower courts. In particular, FRA Williams urged the Court to avoid what Lord Wilberforce of Britain had referred to as “the austerity of tabulated legalism” in interpreting the Constitution.
Even Gani, who appeared for himself, was not left behind. He responded to the Chief’s argument in his characteristic forensic and analytical manner. He contended that contrary to FRA’s submission, there were two different and distinct bodies dealing with discipline under the Legal Practitioners Act, namely the Legal Practitioners Investigating Panel and the Legal Practitioners Disciplinary Tribunal. He argued that the latter had the power of trial and punishment. And it was before the Tribunal that he was brought. The Tribunal must, therefore, observe rules of fair hearing. Like FRA, Gani also cited authorities that went as far back as 1890 as well as decisions from even the Hong Kong Law Report!
It was obvious that both counsels put up a great performance in the supreme court, plus both their arguments and submissions were impeccable.
In resolving the issue before it, the Supreme Court said that one of the cases cited by Gani Fawehinmi was very proximate to the matter before it. That’s the case of Re Godden, where a medical doctor who had examined a police officer and had formed an opinion about his mental state was later requested to be the doctor to issue a report when a formal proceeding was to be taken.
The Supreme Court, after considering having considered all the arguments canvassed by both LPDC and Gani in the light of the facts of the case, the Supreme Court placed the matter on the invisible scale of justice!
The appeal was not only dismissed, but the Supreme Court also ordered LPDC to pay Gani the costs of the appeal, which was assessed at the princely sum of N300 [Three Hundred Naira only].
That was how the thrilling court battle between Gani Fawenhimi and LPDC came to an end!
I hope we have learnt one or two things from this famous court battle, the fact we should not be afraid to fight for our rights even if we are under persecution.
That will be all for this month’s edition. I wish to appreciate our readers who have been taking their time to read this series; may God continue to be with every one of us.
I must not fail to appreciate the inputs of Mr. Onigegewura, a prolific writer and Lawyer whose articles are a huge inspiration to me.
LPDC v Fawehinmi (1985) LPELR-1717 SC
Toheeb Mustapha Babalola is a pupil of Law, a blogger, and a student of Faculty of Law, Bayero University, Kano. He is the Founder of Lex Updates Publications. He is interested in advocacy, academic writing, legal writing/history, activism and positivism. To reach him, email:[email protected] or contact/WhatsApp: +2348106244073
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