The Federal High Court in Abuja has granted Joe-Kyari Gadzama, a Senior Advocate of Nigeria (SAN), leave to challenge his three-year suspension from legal practice by the Legal Practitioners Disciplinary Committee (LPDC).
The leave granted by Judge Obiora Egwuatu on 20 August gave Mr Gadzama permission to apply for judicial review and seek an order of certiorari to quash the LPDC’s Direction delivered on 29 July.
The court ordered him to file the substantive application within seven days of the order and adjourned the matter until 4 September for hearing, subject to service on the respondents.
The development followed an ex-parte application filed on 19 August by Mr Gadzama through his lawyers led by Bolaji Ayorinde, also a SAN.
Mr Gadzama is challenging the disciplinary decision over his alleged professional misconduct in the long-running dispute involving compensation for victims and survivors of the 2001 military operation in Zaki-Biam, Benue State.
PREMIUM TIMES reported that the LPDC had suspended him for three years after finding him guilty of professional misconduct. It also suspended another lawyer, Ocha Ulegede, for two years over the same dispute.
Prayers sought in main suit
Mr Gadzama seeks in his substantive suit seeks an order of certiorari quashing the Direction of the LPDC in complaint no. BB/LPDC/1314/2024 (Chris Alashi, Esq. v Ocha P. Ulegede, Esq. & Anor) delivered on 29 July.
The accompanying statement filed alongside the motion seeks the court’s declation that enforcement of the LPDC Direction, in the absence of an effective appeal mechanism, is inconsistent with sections 36(1), 36(2) and 287 of the Constitution.
The proposed judicial review also seeks orders restraining the respondents from implementing, publishing, transmitting or enforcing the LPDC Direction against him.
Mr Gadzama further wants the Chief Registrar of the Supreme Court stopped from making any disciplinary notation against him and wants the publication or dissemination of the Direction as a final disciplinary determination against him restrained.
Why Gadzama is challenging the suspension
A central argument the senior lawyer made in the application is that there is currently no effective statutory mechanism for him to appeal the LPDC decision.
His lawyers relied on the Supreme Court’s decision in Ben Mene-Ejegi, delivered on 26 June, and a letter from the Body of Benchers dated 13 August, which they said confirmed that no Appeal Committee presently exists with appellate jurisdiction.
The lawyers therefore argued that “there is presently no effective statutory appellate mechanism” through which Mr Gadzama can challenge the LPDC Direction and contend that enforcing the Direction as a final disciplinary decision in those circumstances raises constitutional questions under sections 36(1) and 36(2)(b).
The application describes the continued enforcement of the decision, without an available appellate safeguard, as a “constitutional defect” that can be examined through judicial review.
Mr Gadzama also argues that implementation of the Direction would effectively deprive him of a practical avenue to challenge the disciplinary decision.
The application says the Body of Benchers and LPDC are statutory bodies exercising public powers and are therefore subject to judicial review.
Grounds of challenge
Beyond the constitutional argument, Mr Gadzama raises eight substantive grounds against the LPDC Direction. One of his main arguments concerns a document identified as Exhibit JK2.
The LPDC found the document to be forged because it carried the signature of Zaki Kaduna Mazan on a document dated 22 May 2015, although Mr Mazan had died on 11 September 2010. But Mr Gadzama’s lawyers argue that the finding that the document was forged did not, by itself, establish that he personally forged it.
“The finding that Exhibit JK2 was forged did not, without more, establish that the Applicant personally forged the document, participated in its preparation or knew that it was forged when it was presented to him.”
They said, “The Committee, however, failed to identify any finding of fact or evidence establishing the Applicant’s personal knowledge, participation or culpability in respect of the alleged forgery before attributing professional misconduct to him.”
They also added that the LPDC failed to distinguish between the fact that the document was forged and the separate question of Mr Gadzama’s personal responsibility for the forgery. They also said it did not identify evidence showing that he knew of the alleged forgery, participated in its preparation or personally forged the document.
The application says the committee failed to distinguish between the existence of a forged document and the separate question of Mr Gadzama’s personal culpability.
His lawyers also challenge the LPDC’s finding that he poached or hijacked clients and failed to determine whether Mr Gadzama knew, or ought reasonably to have known, that the clients were already represented by another lawyer.
The lawyers relied on Rule 27(4) of the Rules of Professional Conduct for Legal Practitioners 2023, which they say makes actual or constructive knowledge relevant to the conduct of a lawyer dealing with a person already represented.
They contend that the committee treated the existence of an earlier professional relationship as sufficient to establish misconduct.
The application also argues that the LPDC failed to properly consider conflicting evidence.
It says the committee relied substantially on affidavit evidence attributed to Mbayemen Masewuan, including allegations said to have originated from Patrick Twar, who did not depose to an affidavit before the committee.
The lawyers said the committee also had subsequent affidavits, including Exhibits JK6, JK7 and JK8, in which some judgment creditors affirmed that they had instructed Mr Gadzama.
Those materials, they argued, were relevant to whether the clients had independently instructed him and whether he knew or ought to have known about any existing retainer.
The application claimed that the committee did not adequately resolve the conflicting evidence before describing the evidence against Mr Gadzama as “overwhelming”.
Mr Gadzama also challenges the LPDC’s reliance on observations contained in a Court of Appeal judgment in Orngu & Ors v Gaadi & Ors.
His lawyers argue that the committee improperly elevated observations made by the appellate court into substantive findings of professional misconduct.
They contend that Rule 11(4) of the LPDC Rules did not remove the committee’s duty to determine, from the evidence before it, whether Mr Gadzama personally met the legal requirements for the alleged misconduct.
According to the application, the committee failed to distinguish between facts conclusively determined by the Court of Appeal and other observations about Mr Gadzama’s conduct.
The lawyers therefore argue that the Direction is affected by “error of law and procedural impropriety”.
Backstory
The disciplinary case arose from a long-running dispute over compensation for victims and survivors of the 2001 military operation in Zaki-Biam, Benue State.
The military operation followed the killing of 19 soldiers by suspected Tiv militia members. Survivors and families of those killed later sued the Federal Government over deaths, destruction of property and other losses arising from the operation. Premium Times previously reported that the Federal High Court awarded the plaintiffs N41.8 billion in damages in 2007.
The Federal Government appealed the judgment before the parties eventually reached an N8 billion settlement. The settlement was later adopted as a consent judgment by the Court of Appeal.
The dispute continued over the recovery and distribution of the money and the lawyers involved in the matter.
Mr Gadzama became involved in the dispute in 2015. He maintained that some of the judgment creditors had instructed him to challenge the N8 billion settlement and pursue recovery of the original N41.8 billion judgment.
Chris Alashi, who later petitioned the LPDC, disputed that account. Some judgment creditors also filed affidavits denying that they had instructed Mr Gadzama.
The dispute eventually reached the Court of Appeal, which rejected an attempt to set aside the N8 billion consent judgment. The appellate court also made observations about Mr Gadzama’s conduct in the matter.
The LPDC later relied on parts of that judgment in reaching its disciplinary decision and subsequently found Mr Gadzama guilty of professional misconduct and suspended him from legal practice for three years.
Gadzama opposes several other findings by the LPDC
Mr Gadzama’s lawyers argued that a court decision that departs from a superior court’s earlier decision does not, without evidence of improper intervention by a lawyer, amount to professional misconduct. They described the committee’s reasoning as “internally contradictory” and irrational.
The lawyers also challenged the committee’s treatment of Mr Gadzama’s professional fees. They said the LPDC had expressly held that disputes over his fees fell outside its jurisdiction and belonged before the regular courts. Yet, they argued, the committee relied on the same disputed fees and retainership arrangements when imposing the disciplinary sanction.
They also questioned the committee’s reliance on the doctrine of approbation and reprobation in relation to Mr Gadzama’s pursuit of recovery proceedings for N41.8 billion and his subsequent participation in N8 billion garnishee proceedings.
The lawyers argued that the committee failed to identify any inconsistent position taken by Mr Gadzama on the same issue in the same proceedings. Instead, they said, the committee applied the doctrine to separate procedural steps taken in different proceedings.
The lawyers said the cumulative effect of these errors made the LPDC’s reasoning “irrational, internally inconsistent and legally unsustainable”.
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