The Supreme Court has set aside the May 21, 2015 decision of the Legal Practitioners Disciplinary Committee (LPDC) which disbarred Senior Advocate of Nigeria (SAN), Kule Kalejaye for engaging in professional misconduct.
Kalejaye, who was once a lawyer to the People’s Democratic Party (PDP) and then Governor of Osun State, Olagunsoye Oyinlola, was found by the LPDC to have engaged in an ex-parte confidential communication with the Chairman of the 2008 Osun Governorship Tribunal, Justice Thomas Naron, a decision he appealed.
In a unanimous judgment on Friday, a five-man panel of the Supreme Court upheld Kalejaye’s appeal on the grounds that the trial procedure at the LDPC was flawed.
In the lead judgment, Justice Centus Nweze upheld Kalejaye’s argument of being denied fair hearing in the course of trial before the LPDC.
Justice Nweze noted that some members of the panel of the LPDC, who did not partake in the trial and were not in a position to observe the demeanour and candour of witnesses, as required, partook in the writing of the judgment.
The judge, who upheld the appeal and set aside the decision by the LPDC, failed to make any consequential orders, on the grounds that the appellant did not pray for such orders.
Other members of the panel: Justices Musa Datijo Muhammad, Kumai Aka’ahs, Amiru Sanusi and Sidi Bage, agreed with the lead judgment.
The LPDC had, in its directive issued on May 21, 2015, found Kalejaye guilty of professional misconduct and directed the Registrar of the Supreme Court to delete his name from the roll (list) of legal practitioners in the country.
Kalejaye’s trial was as a result of the recommendation by the National Judicial Council (NJC), which investigated a petition against Justice Naron (then of the Plateau State High Court).
In its decision, given in February 2013, at the conclusion of its hearing in the petition against Justice Naron, recommended the judge’s compulsory retirement.
Justice Naron, had been accused of being in constant and regular voice calls and exchange of mms and sms (text) messages with one of the lead counsel during the Osun governorship election dispute before his panel.
The NJC found Justice Naron guilty of misconduct contrary to the Code of Conduct for Judicial Officers, as provided in Section 292 (1) (b) of the 1999 Constitution.
It proceeded to recommend Kalejaye to the Nigerian Bar Association (NBA) to be subjected to necessary disciplinary measures, following which the lawyer was tried and convicted, a decision he later appealed at the Supreme Court.
Kalejaye, in his appeal, faulted the findings by the LPDC and argued that the committee erred in law for holding that he did communicate with the now retired Justice Naron.
“The appellant, from the onset, denied any communication with the said judge. There was no evidence before the committee on what was communicated between the appellant and the said judge. The purported call long did not show the content of the said communication.
“It was too simplistic for the committee to hold that any communication in this case between a lawyer and a judge without evidence of the content of such communication amounted to infamous misconduct,” he said.
Kalejaye also contended that the complainant, the Nigerian Bar Association (NBA), “did not prove the elements in the three count charge as alleged before the committee (LPDC).
“The committee placed heavy reliance on record of proceedings contained in the call logs which were computer generated but did not satisfy the requirement of the Evidence Act.No witness gave evidence on behalf of the complainant.”
Kalejaye equally argued that the LPDC misdirected themselves in law and in fact when it held that, though the defence of spoofing availed the appellant, “the failure of the appellant’s expert to demonstrate using MTN to MTN network instead of Glo to Airtel was fatal to the appellant’s defence of spoofing.”
The lawyer also faulted the decision of the LPDC on the grounds that the committee erroneously held that the Certified True Copy (CTC) of documents, which contained call logs from computer generated source, do not require any compliance with Section 84 of the Evidence Act, once it has been certified.
The appellant contended in ground four that “the direction (the judgment) is against the weight of evidence”.
Kalejaiye also argued that the committee misdirected its in law and fact when it held “that it was the duty of the appellant to call the MTN service provider as his witness instead of relying on the MTN letter alone.”
He equally argued that the committee “erred in law when it allowed the complainant to reopen its case and call additional witness after it has closed its case, “when the conditions for such reopening, as stated by the Supreme Court in Wiloughby v. IMB Ltd (1987) 1 SCNJ 46 at 70 -58 were not satisfied.”
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