2.5 Professional Discipline: the Disciplinary Committee and the Investigating Panel

2.5 Professional Discipline: the Disciplinary Committee and the Investigating Panel

Statutory reference: SURCON Act, Cap S18 LFN 2004, section 16 and the Second Schedule (Supplementary provisions relating to the Disciplinary Committee and Investigating Panel).

Section 4(e) charges the Council with maintaining discipline within the profession. Section 16 creates two distinct bodies to do it, and keeps them separate.

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1. The Surveyors Disciplinary Committee (section 16(1) and (2))

Section 16(1) establishes the Surveyors Disciplinary Committee, charged with considering and determining any case referred to it by the Panel, and any other case of which it has cognisance under the Act.

Section 16(2) fixes the composition exactly:

The Disciplinary Committee shall consist of the president of the Council and ten other members of the Council appointed by the Council, of whom not less than four shall be members of the Council holding office by virtue of paragraph (c) of section 2(1) of the Act - or, where the number of those members is for the time being less than four, all those members.

Eleven members in total. The paragraph (c) members are the twelve persons elected by the Nigerian Institute of Surveyors, so the provision guarantees that at least four of the eleven adjudicators are elected representatives of the profession rather than appointees.

Second Schedule para. 1: the quorum of the Disciplinary Committee is six.

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2. The Surveyors Investigating Panel (section 16(3) and (4))

Section 16(3) establishes the Surveyors Investigating Panel, charged with the duty of:

• (a) conducting a preliminary investigation into any case where it is alleged that a registered person has misbehaved in his capacity as a surveyor, or should for any other reason be the subject of proceedings before the Disciplinary Committee;
• (b) deciding whether the case should be referred to the Disciplinary Committee; and
• (c) submitting a report on any action taken by the Panel to the Disciplinary Committee.

Section 16(4): the Panel shall be appointed by the Council and shall consist of seven members of the Council. It is a body of Council members only - the Act does not provide for an independent chairman, external members, or a legal practitioner sitting on the Panel.

Second Schedule para. 5: the quorum of the Investigating Panel is three. Paragraph 6(1) allows the Panel, at any meeting attended by not less than six members, to make standing orders; subject to those, it may regulate its own procedure.

Section 16(5): the registrar shall act as secretary to the Disciplinary Committee.

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3. Rules of procedure and evidence (Second Schedule para. 2)

The rules are not made by the Council. The Attorney-General of the Federation shall make rules as to the procedure to be followed and the rules of evidence to be observed in proceedings before the Disciplinary Committee. The rules must in particular provide:

Sub-paragraph (f) is a real protection: an acquittal must be recorded as such, not merely left as an absence of finding.

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4. Evidence powers (Second Schedule para. 3)

For the purposes of proceedings before the Disciplinary Committee:

• any member of the Committee may administer oaths; and
• any party to the proceedings may issue out of the registry of the Federal High Court writs of subpoena ad testificandum (to give evidence) and duces tecum (to produce documents).

Note where the power sits. The Committee does not itself issue subpoenas; a party issues them out of the Federal High Court registry. Two protections follow immediately: no person appearing before the Committee shall be compelled (a) to make any statement tending to incriminate himself, or (b) to produce any document under such a writ which he could not be compelled to produce at the trial of an action.

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5. The legal assessor (Second Schedule para. 4)

For the purpose of advising the Disciplinary Committee on questions of law arising in proceedings before it, there shall in all such proceedings be an assessor, who:

• is appointed by the Council on the nomination of the Attorney-General of the Federation; and
• shall be a legal practitioner of not less than seven years' standing.

The assessor is appointed by instrument, holds and vacates office as the instrument provides, and where the appointment is not general it has effect only for a particular meeting. Subject to the terms of appointment, the assessor attends when requested by notice in writing from the secretary not later than three clear days before the meeting.

Two procedural fairness rules govern the advice:

1. Except where the Committee is deliberating in private, the assessor's advice on questions of law as to evidence, procedure and compliance with the Act shall be tendered in the presence of every party or of his counsel.
2. If advice is given otherwise than in the presence of all parties or their counsel, the assessor shall as soon as may be inform all the parties of the nature of the advice given and the Committee's reaction to it.

The assessor advises the Disciplinary Committee - not the Investigating Panel - and the nominating authority is the Attorney-General of the Federation, not the Chief Justice of Nigeria.

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6. Separation of investigation from adjudication (Second Schedule para. 7)

Paragraph 7(1): a person ceasing to be a member of either body is eligible for re-appointment for one further term and thereafter no longer.

Paragraph 7(2) contains the central safeguard: a person may, if otherwise eligible, be a member of both the Disciplinary Committee and the Investigating Panel - but no person who acted as a member of the Investigating Panel with respect to any case shall act as a member of the Disciplinary Committee with respect to that case. Dual membership is permitted; dual involvement in a single case is not.

Paragraph 8: either body may act notwithstanding a vacancy, and proceedings are not invalidated by an irregularity in appointment or by participation of a person not entitled - subject to paragraph 7(2). That exception matters: the one irregularity that is not cured is an investigator sitting in judgment on his own case.

Paragraph 9: each body may sit in two or more divisions. Paragraph 10: documents to be served on either body are served on the registrar. Paragraph 11: expenses of either body are defrayed by the Council.