Mene-Ejegi: The Gap the Court Cannot Fill

The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com

Last week, we reported this appeal as our Law Report – SC/481/2018 Ben Mene-Ejegi Esq v NBA & Legal Practitioners Disciplinary Committee (LPDC) Judgement delivered on 26/6/2026 per Mohammed Baba Idris, JSC; Obande Festus Ogbuinya & Habeeb Adewale Olumuyiwa Abiru JJSC Dissenting (Mene-Ejegi case or Mene-Ejegi). Because it had to do with the interpretation or application of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), a full court of seven Justices heard the appeal – see Sections 233(2)(b) & 234 thereof. This full court decision of the Supreme Court, though split 5:2, has put paid to the argument as to whether an appeal can lie directly from the LPDC to the Supreme Court. The law as it stands today, is that it cannot. The Apex Court relied on Section 233 of the Constitution which confers its appellate jurisdiction on it, and by virtue of Section 233(1) thereof, presently, appeals lie to the Supreme Court only from the Court of Appeal. 

While the Majority decision of the Apex Court found Section 233(2) to be exhaustive in terms of its appellate jurisdiction, on the other hand, it also found that Section 240 of the Constitution shows that only the Court of Appeal was designed to receive statutory add-ons, that is, appeals from such “other tribunals as may be prescribed by an Act of the National Assembly” (NASS). The purport of this is that, while their Lordships found that the only way an appeal can lie to the Supreme Court is from the Court of Appeal, and NASS has no power to enact a statute adding any further appellate source to the Supreme Court, they accepted that Section 240 of the Constitution allows other tribunals not expressly named therein, to be given a right of appeal to the Court of Appeal by an Act of NASS. Section 12(7) of the Legal Practitioners Act (as amended) (LPA) which purported to send LPDC directions straight to the Supreme Court was accordingly, found to be inconsistent with Section 233(1) of the Constitution, and therefore, void to the extent of its inconsistency by virtue of Section 1(3) thereof. 

The principle of expressio unius est exclusio alterius was applied, that is,  the express mention of one thing automatically excludes any other, which otherwise would have been included by implication – see Jegede & Anor v INEC & Ors (2021) LPELR-55481(SC) per Mohammed Lawal Garba, JSC; Shinkafi &  Anor v Yari & Ors (2016) LPELR-26050(SC) per John Inyang Okoro, JSC.  By virtue of Section 315(1) of the Constitution, the LPA is an existing law, and Section 12(5) thereof allowed for appeals from the Appeal Committee to the Supreme Court; yet, this appeal process was excluded from the Supreme Court’s appellate jurisdiction laid out in Section 233(2) of the Constitution. 

The implication of the foregoing is that the only constitutionally contemplated path of an LPDC appeal to the Supreme Court, be it through the Appeal Committee or directly from the LPDC, would be through the Court of Appeal. That path, however, is not yet open. Section 240 is not self-executing. It permits NASS to prescribe the LPDC –or any successor appellate body –as a source of appeal to the Court of Appeal; it does not, by itself, vest that jurisdiction.

The older printed text of the LPA (the version reproduced as Cap L11 in the Laws of the Federation 2004) had sent a person aggrieved by an LPDC direction, first to the Appeal Committee of the Body of Benchers (Appeal Committee) within 28 days – see the old Sections 11(7) and 12(1) – and from that Committee onward to the Supreme Court – Section 12(5). In SC/278/2021 Nnamdi Osuji v LPDC & Incorporated Trustees of the NBA, Judgement delivered on 4/7/2025 per Mohammed Lawal Garba, JSC, the Supreme Court applied that compilation. It held that a direct appeal from the LPDC to the Supreme Court was incompetent, and that the aggrieved person must go to the Appeal Committee first. The Osuji decision had still assumed that, after the Appeal Committee, the Supreme Court remained the next port. 

The Mene-Ejegi decision, makes that assumption untenable. If Section 233 admits only the Court of Appeal as a feeder court, neither the LPDC nor the Appeal Committee can be given a statutory ticket directly to the Apex Court. It appears that, as things stand, either appeals will terminate at the Appeal Committee, or whether from the LPDC or Appeal Committee, a law must be enacted for such appeal to go to the Appeal Court, in order to then be able to get to the Supreme Court. The 1994 amendment to the LPA had in any event, deleted the Appeal Committee and substituted Section 12(7), allowing direct appeal from the LPDC to the Supreme Court. The Majority in  Mene-Ejegi has now voided Section 12(7). The honest present tense is therefore this: there is now no clearly living statutory appeal from an LPDC direction to any court. And, it appears that no Appeal Committee has been constituted, meaning that until such a time as the Appeal Committee is constituted or NASS acts, LPDC directions sit in a vacuum, with nowhere to go. 

In their dissenting opinions, Ogbuinya and Abiru JJSC, preferred to follow the precedent laid down in Okike  v LPDC (2005) 3-4 SC 49, also a seven man Panel led by Mohammed Lawal Uwais, CJN. The Panel had unanimously held that Section 233(1) of the Constitution gives the Supreme Court exclusive jurisdiction over Court of Appeal decisions; it does not say the Court may hear only those appeals. In the absence of an express ouster, the Court would not readily strip itself of a jurisdiction it had long exercised in professional- discipline matters. 

For the dissenting Justices, the live question appeared to be which statute is extant, already answered in their view, by the Revised LPA and by the Okike decision. A later Panel they said, cannot raise constitutionality suo motu, overrule a full-court decision that was never challenged by the parties, and treat a mere difference of interpretive taste as a ground for departure. In Adegoke Motors Ltd v Adesanya & Anor (1989) LPELR-94(SC) per Chukwudifu Akunne Oputa, JSC, his Lordship repeated the famous words of US Supreme Court Justice, Robert H. Jackson in Brown v Allen: “We are final not because we are infallible; rather we are infallible because we are final”. Because no other court sits above the Supreme Court, departure from a previous decision is something that is done rarely, and it appears that the dissenting Justices in the Mene-Ejegi case didn’t believe that conditions for such departure had been met.  But, the Majority’s reply was that once the issue is jurisdiction, the Court may re-examine the Constitution itself, and that Okike left the Section 233/240 architecture unexamined. That is the real split: closed textual structure versus settled precedent plus a saved statutory right of appeal.

Pertinent Question: Is Professional Misconduct a Constitutional Event?

A pertinent question to ask here is, why the issue of the disbarment or discipline of a Lawyer for infamous conduct or professional misconduct, be one that should reach the Supreme Court, the highest court of the land, a policy court, as if it’s just a glorified appellate court? The Supreme Court is a court of doctrine; it decides hard cases where the law is unclear or where the Constitution is in issue. Does the issue of whether a Lawyer is disbarred or not, fit this bill? I think not. The full court sat in  Mene-Ejegi, not because of the subject-matter of his case, but because of the interpretation and application of Section 233(2)(b) of the Constitution vis-à-vis issues relating to the LPDC and whether appeals could lie therefrom to the Supreme Court. Infamous conduct, is not a constitutional event. Allowing such infamous conduct matters simpliciter to reach the Supreme Court from the LPDC or Appeal Committee, would open the floodgates of other professional bodies to do the same. With respect, this isn’t the role of the Supreme Court. 

In AGF & Ors v Abubakar & Ors (2007) LPELR-3(SC) per Sunday Akinola Akintan, JSC, the Supreme Court held thus: “For the court to enact or write into the Constitution what its makers failed to insert would amount to the court enacting laws and as Lord Simmons described such an act “a naked usurpation of legislative functions under the thin disguise of interpretation….”. His Lordship went on to hold that if there are legislative gaps, such gaps must be filled by amendment. 

The mode of amending the Constitution is set out in Section 9 thereof; it cannot be done by any other means. For the purposes of amending Section 233(2) of the Constitution to expand the appellate jurisdiction of the Supreme Court, the process outlined in Section 9(2) thereof would have to be followed, that is, the amendment cannot be passed in either House of NASS unless it is supported by votes of at least two thirds of the members of the  House of NASS that proposed the amendment and approved by a resolution of Houses of Assembly of not less than two-thirds of all the States. 

It appears that this trite position must have impacted on the Majority decision in Mene-Ejegi; that even if such appeals had lain from the LPDC to the Supreme Court previously, there is actually no such provision permitting same in Section 233(2) of the Constitution, and a constitutional amendment would be required to be able to hear such appeals. After all, the Supreme Court is a creation of the Constitution. 

The Majority in Mene-Ejegi has answered the jurisdictional question. It has not answered the practical one. A Lawyer who is struck off, and who disputes LPDC’s direction, now has no clearly living statutory path into any court. Reconstituting the Appeal Committee does not, on the majority’s reading of Section 233 of the Constitution, reopen the Supreme Court. Direct restoration of the old Section 12(7) of the LPA route would require a Section 9(2) constitutional amendment of Section 233. The constitutionally available, and far less cumbersome, cure is the one Section 240 already contemplates: an Act of the National Assembly prescribing the LPDC – or any successor appellate body – as a source of appeal to the Court of Appeal. Until NASS does that work, the gap the Court identified remains a gap the Court cannot fill. As the Supreme Court itself said in AGF & Ors v Abubakar & Ors (Supra), writing into the Constitution what the makers omitted is not interpretation, it is legislation.

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