Judgment of the High Court of the Federal Capital Territory in the case of John Unachukwu vs Nigerian Bar Association which nullified his disqualification to contest in the past NBA election.
In The High Court of the Federal Capital Territory
In the Abuja Judicial Division
Holden in Jabi
Before His Lordship: Hon. Justice .Y. Halilu
Sui Number: Suit No: CV/24h/16
Date: : Tuesday October 17, 2017
Between
John Echezona Unachukwu …………………………… Plaintiff/Applicant
(Also known and called John Unachukwu
Austin, John Austin Unachukwu,
Unachukwu John Austin or John Austin)
And
1. Incorporated Trustees of the Nigerian Bar Association (NBA)
2. Mr. Augustine Alegeh, (San) (NBA President)
3. Mr. Ken Mozia, San (Chairman, Electoral Committee)
4. Ivir. Oluwaseun Ajoba (Secretary, Electoral Committee) …………… Defendants
5. Hajia Safiy A Balarabe (Member, Electoral Committee)
6. Mrs. Amaka. Ezeno (Member, Electoral Committee)
7. Mrs. Eucharia Pepple (Member, Electoral Committee)
8. Grace Infotech Limited
This suit arose from an action filed by the Plaintiff who was wrongfully disqualified by the Electoral Committee of the Nigerian Bar Association (NBA) from contesting election as the National Publicity of the NBA during the Associations’ general elections in July 2016.
It is the contention of the 1st Defendant that the Plaintiff violated the mandatory provisions of section 16 of the NBA Constitution which required him not to resort to court action until his complaint had first been considered and disposed of by the Dispute Resolution
Committee of the Association, which committee had a mandate to decide the complaint within sixty (60) clays of the receipt thereof
I have considered the totality of arguments in respect of the competency of this action before me. Indeed it is not in dispute that the Plaintiff is a member of the Nigerian Bar Association on the basis of which he indicated his interest to contest for the position of Publicity Secretary of the NBA.
This fact which was not in dispute can be gleaned from paragraph seven of the Plaintiffs affidavit in support of the originating summons.
For clarity the said paragraph seven is hereby reproduced
That I am a registered member of the Nigerian Bar Association NBA and an eligible voter in its 2016 General Elections, having paid my Bar practising fees and branch dues 0n or before March 31, 2016 as provided for in the 2015 constitution of the NBA. The constitution of the NBA and copies of my payment receipt of practising fees and Branch Dues are shown to me and respectively attached to this affidavit as Exhibit “1A, “I B” and “1C”.
The law is settled that a member of an Association is bound by the constitution, rules and regulations regulating the association and cannot decide to pick and choose which aspect of the law to comply with and which one to ignore. FAWEHINMI VS NBA N02 (1989) 2 NWLR (Pt. 105) 558.
Indeed, section 16 of the NBA Constitution provides for the right of any member who has a grievance against the association to sue, but that such right could only be activated after such a member had exhausted the condition precedent set out to be met by that provision.
In their reaction to the provision of section 16 stated above, learned counsel for the Plaintiff stated that at the time the cause of action in the present suit arose, there wasn’t a Dispute Resolution Committee (DRC) of the NBA in place to attend to his grievances, which thereby made it impossible for him to comply with section 16 of the NBA Constitution Counsel referred to the provision of section 12(1)(l) and section I (3)(9) of the NBA Constitution with regards to the creation, membership and or composition of the said Dispute Resolution Committee (DRC).
Having regard to the above basic and undisputed facts, is it lawful in the eye of the law and conscience for the Plaintiff to institute the present suit without resort to or regard for the dispute resolution mechanism provided by section 16 of the NBA Constitution, particularity, where the grievance relates to interpretation of the constitution and alleged violation of the constitution itself?
It is instructive to note that sections 6(6)(b) and 36b of the Constitution of the Federal Republic of Nigeria 1999 as amended guarantees access to court to any aggrieved person such a right having been curtailed by either NBA Constitution of any statue, no matter how well couched.
As stated in the preceding part of this Judgment, the fact that Plaintiff is a member of the Nigerian Bar Association (NBA) and is thus bound by its constitution is not in dispute.
It is also not in dispute that the Plaintiff is challenging the act of the Defendants that purport to constitute violations of the constitution of the NBA.
Having regards to these basic and undisputed facts, was it therefore lawful for the Plaintiff to institute the present suit without resort to or regard for the Dispute Resolution Mechanism provided by section 6 of the NBA Constitution, particularly where the grievance relates to alleged violation of the constitution itself?
In PERETU VS GARIGA (2103) 5 NWLR (Pt. 1348) 415 the supreme Court held per Ngwuta JSC thus;
“All ouster clause, if there is one in the constitution of the PDP and all the parties in the case are members of the PDP, may exclude the jurisdiction of the court from questioning any action of the party based on its constitution. See TAYLORS’S case (supra); However, the courts are not precluded from determining any question as to whether the act of the party is in consonance with its own constitution. The court can entertain a question as to whether the party, in taking any action, complied with or violated its own constitution.”
From the above therefore, it is my ruling that regardless of the conditions precedent provided by section 16 of the NBA Constitution, the jurisdiction of this court or indeed any court for that matter is not ousted to entertain the Plaintiffs claim, so long as the claim involves questions of violation of the constitution of the NBA by the Defendant. I so hold.
Having held that the court has jurisdiction to entertain this case. I shall delve into the substantive suit of the Plaintiff to determine whether he has made out a case to warrant being granted the reliefs sought.
The law is well settled that originating summons may be employed to commence an action where the issue involved is one of the construction of a written law, instrument, deed or will or other document or some question of law is involved or where there is unlikely to be any substantial dispute on issues of fact between the parties. Keyamo vs House of Assembly (2002) 12 SC (Pt. 1) 190.
Let me also note from the onset that where conflicts in the affidavit do not touch on the material substance of the matter before the court, decision may be based on the evidence in those affidavits without resort to oral evidence to resolve such immaterial facts.
It is however trite that an originating summons is procedure where the evidence in the main is by way of documents and there is no serious dispute as to the facts therein. It is not a proper procedure where contention issues or facts are to be resolved.
‘The Plaintiff in his 33 paragraph affidavit approached this Honourable court for the various reliefs as captured in the preceding part of this judgment.
Indeed, a trial court has the onerous duty of considering all documents placed before it in the interest of justice. It has a duty to closely examine documentary evidence placed before it in the course of its evaluation and comments or act on it, documents tendered before a trial court are meant for scrutiny or examination and evaluation.
MOHAMMED VS ABDUBAKAR (2008) 4 NWLR (Pt. 1076) 11 at page 156 -157.
As stated earlier in the preceding part of this judgment the action of the Plaintiff is for the interpretation of a provision of the Nigerian Bar Association (NBA) 2015 i.e section 8(3)(b).
It is the contention of the Plaintiff that on screening his documents the 3rd-7h Defendant’s committee, without affording the Plaintiff any hearing to elicit explanation, determined that he was not qualified to contest, and only one reason was given the one contained in Exhibit “2” (Notice of Disqualification) in that said notice, the 4th Defendant stated that the Plaintiff not being in private practice, was disqualified by virtue of section 8(3)(b) of the NBA Constitution.
The Plaintiff annexed the notice of the disqualification as Exhibit “2”.
For ease of reference the content of Exhibit 2 which gave birth to the present suit is hereby reproduce; RE: 2016 NBA National Election for the office of the Publicity Secretary. “
Notice of Disqualification.
“I write to notify you that the Electoral. Committee of the Nigeria Bar Association in it meeting held on 11th June, 2016. Disqualified you from contesting for the office sought on the ground.
That you are not in private legal practice as stipulated by section 8(3)(b) of the NBA Constitution, that you are the a judicial editor in the employment of The Nation newspaper please note that you have a right to appeal against the above decision. This right must be exercised within seven (7) days of receipt of this Notice by email.
Kindly Note any appeal against the above decision should be submitted to the secretary NBA Electoral Committee of NBA National Secretariat, Abuja.”
From the above therefore, it is obvious that the disqualification of the Plaintiff to contest for the position of the publicity secretary of the NBA is based on the provision of section 8(3)(b) of the NBA Constitution.
To unravel the mystery and unmask the masquerade for justice to be done, I shall reproduce the said section 8(3)(b) of the NBA for clarity purposes; Section 8(3) (Qualification to hold a National Office).
“A member of the Association shall be qualified to hold a National Office if: He/she is a full member of the Association and has paid, as at the date of his/her nomination, his/her practicing fees and Branch Dues as and when due for three (3) consecutive years inclusive of the year of election.
He/she is in private legal practice; He/she has at any time prior to his/her nomination been a member of the National Executive Committee or branch Executive Committee as indicated hereunder. “
What then is the meaning of private practice? The black’s law Dictionary, 9th Edition, page 1315, define private as follows; (i) Relating to an individual as opposed to the public or the government (ii) (of a company) shares that are freely available on an open market. Whereas practice of law on page 1291 is defined as;
The Professional work of a duly licensed lawyer, encompassing a broad range of services such as conducting cases in court, preparing papers necessary to bring about various transactions from conveying land to effecting corporate mergers, preparing legal opinion on various points, of drafting wills and other estate – planning documents and advising client on legal questions.
It is also be noted that section 24 of the legal practitioner’s Act defines a legal practitioners as “a person entitled in accordance with the provisions of this Act to practice as a Barrister and solicitor; either generally or for the purpose of any particular office or proceeding.
I must observe here that the law which regulate qualified lawyers practice in Nigeria is Rule B of the Rules of Professional conduct for legal practitioners.
The Rule provides as thus; a lawyer, whilst a servant or in a salaried employment of any kind, shall not appear as advocate in a court or judicial tribunal for his employer except where the lawyer is employed as a legal officer in a government department.
A lawyer, whilst a servant or in a salaried employment, shall not prepare, sign or frank pleadings, applications, instatements. agreements, contracts, deeds letters, memoranda, report, legal opinion or similar instrument or processes or file any such document for his employer.
A director of a registered company shall not appear as an advocate in court in judicial tribunal for his company.
A lawyer in a full time salaried employment may represent his employer as an officer or agent in cases where the employer is permitted by law to appear as an officer or agent, and in such cases, the lawyer shall not wear robes.
All officers in the Armed Forces who is a lawyer may discharge any duties devolving on him as such officer and may appear at a court martial as long as he does so in his capacity as an officer and not as a lawyer.”
Indeed, a lawyer in a private practice is distinguished from the lawyer in salaried employment.
In a bid to convince the court that he is in private legal practice, and therefore qualified to contest for the election, the Plaintiff annexed various documents.
Exhibit “4” is a letter of engagement as an Associate in J.K Gadzama Law Firm which is a private law firm.
Also in evidence is Exhibit “5” which is a certificate of Appreciation by the NBA when the Plaintiff contested and won the position of Assistant publicity secretary of the NBA.
The Plaintiff also annexed a letter of instruction to handle class action suits in respect of awaiting trial persons on behalf of the National Human Rights Commission. Plaintiff further annexed originating motion he filed in court for the Enforcement of Fundamental Right of 10 Applicants.
From the above therefore, it is obvious that the Plaintiff is in private legal practice I so hold.
The Plaintiff further stated in paragraph 26 of his affidavit that he knows as of fact that the current 2nd Vice-President, Mr. Aliyu Nasarawa is also a full time lecturer at the Jigawa College of legal studies, Ringin, Jigawa State, and no issues was ever made about this when he was appointed to that office in 2016 by the 2nd Defendant.
These facts were not countered by the Defendants. The law is elementary that facts in an affidavit form part of documentary evidence before the court.
Where an affidavit is filed deposing to a certain facts, and the other party does not file a counter affidavit the facts deposed to in the affidavit would be deemed unchallenged and undisputed. BAJ)EJO VS FED. MINISTRY OF EDUCATION (1996) LPELR (SC).
It is on record by affidavit evidence that prior to the determination in Exhibit “2”, the Plaintiff was not called upon to explain why he should not be disqualified from contesting.
It is also in evidence that after the Plaintiff appealed against his disqualification as demanded vide Exhibit “3”, the Defendant did not invite the Plaintiff for explanation.
This action of Defendants, I must say, constitute constitutional infraction contrary to section 36(1) of the 1999 Constitution as amended. The law is well settled that any breach of the right of fair hearing nullifies the act or proceeding without assurances. AUDU VS FRN (2013) 5 NWLR (Pt. 1348) 397 at 410 – 411 SC.
What then becomes of those things done by way of decision arising from Plaintiff s breach of right to fair hearing?
Such acts cannot stand or be allowed to stand in law. The laws made by man for the regulation of relationships generally are a direct copyright of supreme laws handed down by God through His prophets for the regulation of human relationships generally.
Those who flout supreme laws, have a date with God on judgment day… for human laws, offenders shall be dealt with here on earth.
On the whole, it is crystal clear that Plaintiff has established his case on balance of probability to be entitled to judgment.
In consequence of the fragrant abuse of the Plaintiff s right, the following Orders are made:-
The decision of the 3rd – 7th Defendants through the 4th Defendant, which disqualified the Plaintiff fron1 contesting for election as the National Publicity Secretary of the Nigerian Bar Association is hereby nullified.
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