Of Battle For Legitimacy And Internal Rumpus Within The Aviary Of The Bar By Raymond Nkannebe ESQ
While the National Executive Council of the Nigerian Bar Association,( the foremost body of legal practitioners in Nigeria that boasts of over one hundred thousand members nationwide) led by Alhaji A. B. Mahmoud SAN, who rode to the cusp of leadership mid last year under the “brave new bar” mantra might continue to play the ostrich and carry on as though all is well with the elitist body; the ugly truth however, is that the reverse is the case, as the current National Executives of the octopian organization of professionals currently is mired in the web of a constitutional crisis that challenges the legitimacy of the present National Executives and even more portentous, the continuous corporate existence of the Bar.
Consequent upon the suit brought by a senior member of the association and former secretary of the constitution review committee of the NBA, one Mr. Olasupo Ojo vide an Originating Summons before the Federal High Court Abuja in suit No: FHC/ABJ/CS/545/2016 between Mr. Ojo Olasupo and the Regd. Trustees of the N.B.A, and the judgment of the court delivered on the 30th of March, 2017 by Hon. Justice Tsoho. J. which granted all the prayers sought by the plaintiff to wit: declaring the 2015 constitution of the NBA upon which the current National Executives were elected null and void ; a declaration that all the actions taken under those constitutions are null and void and a restraining order against the association and all its members from further conducting its affairs by this voided constitution, the legitimacy of the current National Executives of the reputable body has been on a balance even though elements within the National body seem to be downplaying all of that in a classic case of living in denial.
While it is understood that the NBA has since appealed against this judgment at the Court of Appeal, Abuja, suffice it to say that the said appeal does not quarrel with the findings, nay orders of the court, but rather went on a tangential plane challenging the locus standi of the plaintiff, that is to say, challenging his competence to have brought the action and also a dissipation of legal energy over the non-joining of the 125 branches of the NBA to the suit by the plaintiff even when it is clear to anyone with the scantest understanding of the structure of the Nigerian Bar Association ,that the National organ of the NBA is distinct from its branches asthey both operate on a separate, though similar legal framework.And so an action instituted against the National body, need not co-opt the state branches as parties.
And in the unlikely event that this issues are resolved in favour of the NBA at the appeal, it still would not detract from the substantive issues in the appeal, i.e the legality and otherwise of the 2015 purportedly amended constitution that brought in the current National Executives at the helm of affairs since the 1st of August, 2016 after what many critics dubbed one of the most controversial elections of the NBA in the odd years of its existence.
Trouble started late 2015, when the NBA under the leadership of Augustine Alegeh SAN in a bid to seek approval of the CAC for the amendment of its constitution pursuant to section 594 of CAMA, issued a public notice calling for objection to its application to the CAC from concerned members of the public.
In a Notice of Objection to the said proposed amendment, the plaintiff, Mr. Olasupo Ojo in a letter dated 14th September, 2015 with Ref. No: CAC/IT/MIA/NO 2365, filed on his behalf by his solicitors and addressed to the Registrar General of the CAC, objected to the proposed amendment on a number of grounds to wit:
That the 2015 amended constitution for which the endorsement of the CAC is being sought did not amend or alter the subsisting 2001 amended NBA constitution approved by the CAC. Further grounds of his objection were that the 2001 amended constitution of the NBA adopted at the Calabar Delegates’ Conference of August 31, 2001 as approved by the CAC in compliance with the provision of the CAMA is the extant and valid constitution of the NBA, same having being confirmed by the CAC through its issuance of a Certified True Copy to him.
In the same application, Mr. Olasupo Ojo further contended that the procedure for amendment of the NBA constitution in the approved 2001 constitution is as contained in section 26 thereof which section provides as follows: “this constitution shall not be amended except at an Annual General Conference(AGC) of the Association by a two-thirds majority of those present and entitled to vote, provided that two-third branches of the Association are represented and provided further that at least 60 days Notice of the proposed Amendment shall have been given to the Secretary-General who shall have circulated same to delegates at least 20 days before the proposed amendment is tabled for discussion at the AGC”.
Now, whereas section 21 of the amended 2015 constitution of the NBA which has been voided by the Federal High Court (FHC) provides as follows: “The NBA constitution amended and adopted at the Delegates’ Conference held in Lagos on the 20th of August, 2009 and further amended and adopted at the AGC held in Owerri on 28th August, 2014 is hereby repealed”, Mr. olasupo Ojo called the attention of the CAC in his Notice of Objection that both the 2009 and 2014 constitutions referred to in the above sections are deemed never to have existed; the leaders of the NBA at the time not having sought nor obtained the approval of the CAC in accordance with the provisions of section 598 of the CAMA, 2004 and are thus void under section 600 of the same Act to the degree or extent of their inconsistency with the valid 2001 constitution adopted at the Delegates’ Conference in Calarbar and which is yet to be validly repealed.
Other collateral ‘sins’ of the NBA, included Not revealing in the Public Notice, the particular constitution sought to be amended and for which it sought approval ; failure to expressly amend or repeal the approved 2001 constitution; failure to submit to the CAC a copy of the resolution of the Annual General Meeting where members voted to amend and repeal the invalid 2009 and 2014 constitutions; the surreptitious attempt to retrospectively seek approval for the 2015 Constitution having published, distributed and circulated the same Constitution without the prior approval of the CAC; conducting elections into the National and Branch offices of the NBA under the voided constitution; spending the funds of the organization pursuant to a constitution for which approval is being sought belatedly.
Others include, failure of the NBA to satisfy all the requirements listed in section 68 of the Companies Regulation, 2012 as made and published by the CAC pursuant to sections 16, 585 and 609 of the CAMA, LFN 2004.
All of the foregoing condition precedents having not been complied with by the Augustine Alegeh led NBA before the purported repeal of the valid 2001 constitution, the petitioner contended, robs the current National Executives of the NBA of any legality under the voided 2015 constitution—the law being trite that no legality can proceed from an illegality.
In the wake of all these obviously avoidable developments, what has agitated the mind of critical watchers of the elitist organization, is why a body of professionals whose leadership over the years have been a cocktail of Senior Advocates and other distinguished citizens of the country and who thrive under the high sounding mantra of “Promoting the Rule of Law” would carry on its activities successively in a manner that makes a mockery of the due process of law.
Whereas the A.B Mahmood led NBA which now battles for legitimacy is currently in the middle of this crisis and who now suffers the misfortune of bearing the cross of the indiscretion of his predecessors, it is appropriate in all fairness to him, to point out that his EXCOs are not, and were not directly involved in the constitutional breaches that has now set the NBA on edge, having not been active players when the manifest irregularities that gave birth to the current constitutional crisis took place in 2015. A vindication of this position could be found in the Press Statement volunteered by Mr. Olasupo Ojo to press men earlier this year to the effect that previous leadership of the NBA had failed to comply with the requirements of CAMA as provided in “PART C” of the Act such as filing of Annual Returns among other statutory obligations of an organization of Incorporated Trustees save for the Wole Olanipekun led NBA between 2002 and 2004. Little wonder then that the 2009 and 2014 purportedly amended constitution of the NBA were not ordained with the cloak of approval at the CAC pursuant to the mandatory requirements of the law.
Perhaps the reason(s) why the 2015 voided constitution of the NBA has degenerated into litigation and the public outcry that now greets it, may not be unconnected with the radical improvements made therein, namely the introduction of electronic voting in the election of National Officers. Section 9(4) of the now voided constitution provides as follows: “elections into National Offices shall be by universal suffrage and electronic voting as set out in the second schedule”.
It was on the basis of this provision that the 2016 National Election that brought the A.B. Mahmoud led EXCO to the fore was conducted and in which he polled 3,055 votes to defeat his closest rival, Joe Kyari-Gadzama SAN who vehemently challenged the result. Some purveyors of conspiracies have thus seen the action brought by Mr. Olasupo Ojo challenging the constitution that threw up Mahmoud as a proxy war of sort by elements within the ranks of the NBA who do not like his face or who believe the secret ballot system under which previous administrations of the NBA have emerged would have increased the chances of their preferred candidate,ala Gadzama.
But all of that readily flies in the face of the fact that Mr. Olasupo’s action in court predates the NBA elections that ushered in the Mahmoud Exco; same have been constituted on the 27th of July, 2016 during the pendency of the administration of the immediate past president, Augustine Alegeh, SAN. Mr. Olasupo Ojo on his part has reiterated that his action was brought in good faith with the intention of setting the bar on the path of rectitude.
In a statement made public mid-April, the senior lawyer declaimed, “if any NBA politician derive any benefit or suffer any injury consequent upon my suit and judgment delivered, that is their fate…for me, I have satisfied my conscience as a lawyer and active member of the NBA. No other member of the NBA loves the NBA more than I do. I watch over the legal health of the NBA while many of the NBA politicians merely seek office for power and to preside over resources and hold the NBA by the jugular”.
In the midst of all of these, the Lagos branch of the NBA has since joined the fray in compounding the woes of the current leadership of the NBA after having fallen out with its EXCO. On the 23rd of May, 2017 at an Extra-Ordinary meeting, the branch voted to return to the use of its 2003 Bye-Laws to conduct its affairs and further went on to conduct its branch elections held on the 29th of June, 2017 pursuant to the 2003 Bye-Laws as against the Uniform Bye-Laws recommended by the now voided 2015 constitution. The decision was reached by a majority of 96 votes against 13 in spite of a strong delegation led by the general secretary of the NBA, Mr. Isiaka Abiola Olagunju with a mandate to lobby and persuade the branch to keep faith with the Uniform Bye-Laws contained in the 2015 constitution.
The decision, the Lagos branch said, was in reaction to the judgment of the Federal High Court judgment voiding the 2015 constitution. While calling for the current excos to step down and hand over the affairs of NBA to the trustees in accordance with the provisions of CAMA and the Legal Practitioners Act, 2004, the branch said the Hon. Justice John Tsoho’s judgment leaves it with no other option but to comply with the court order by jettisoning the Uniform Bye-Laws for branches sanctioned by the voided constitution until such a time when the judgment is unlikely reversed on appeal.
In the meantime, the reaction of the embattled National Executives of the NBA has been one of call for calm among the distinguished members of the bar while the leadership confronts the seemingly constitutional hocus pocus angling to tear the NBA apart.
In his Democracy Day message on the 29th of May, 2017 to members of the Bar, the embattled president, A.B. Mahmoud, SAN informed members that the 2015 constitution—the main object that voided his executive has finally been registered with the Corporate Affairs Commission. This, according to him, puts questions about the legitimacy of his administration to rest.
Said him, “I am happy to say at last that I have just been informed by the General secretary that the NBA 2015 constitution has been approved and registered by the CAC. We hope this will put an end to all controversies and litigation on the NBA constitution. Regardless of that however, we have also been consulting with the trustees and other stakeholders including some of our colleagues with grievances to resolve all these matters in the interest of the country. The country needs a strong legal profession with a strong voice. This is not the time for us to consume the association with our internal bickering”.
Obviously angered by these ugly developments that shouldn’t be heard of, from a respectable body such as the NBA, senior members of the profession have called on the Mahmoud led NBA not to dissipate energy and/or grandstand through the instrumentality of an unnecessary legal sophistry to prosecute an appeal over a declaratory judgment obviously aimed at buying more time for the administration until it serves out its two year tenure come 2018.
They have on the contrary, written to the Chief Justice of Nigeria, (CJN), His Lordship, Hon. Justice Walter Samuel Onnoghen in his capacity as the chairman of the Body of Benchers (BOB) to exercise his powers pursuant to the provisions of sections 10(2), 3(b) and 4, of the Legal Practitioners Act, 2004. And to as a matter of urgency, constitute a caretaker committee to take over the affairs of the A.B Mahmoud led NBA pending when elections are held in accordance with the 2001 valid constitution.
Prominent among these calls is that of Mr. Asiwaju Adegboyega Solomon Awomolo SAN who in a letter to the Attorney General of the Federation Abubakar Malami SAN, in his capacity as the leader of the Bar, prevailed on the Minister of Justice to use his good office to call the leadership of the NBA to order warning that the issues that paralyzed the NBA between 1992 and 1998 started like a joke. In another letter dated 5th of April, 2017 and addressed to the Incorporated Trustees of the NBA made up of Alhaji Abdullahi Ibrahim, Chief Anthony Mogboh, Chief T.J.O. Okpoke, Chief Wole Olanipekun SAN among others and copied to the CJN, the learned silk stressed that the implication of the judgment of the Federal High Court is so grave that it will appear as if we are drawn back to 1992 when the bar association went into crisis that nearly terminated its existence. “…it is very sad to note that the trustees inadvertently have left the association to the hands of successive elected leaders, some of whom by omission or commission lost sense of history and abdicated their responsibilities…” he said. He rounded off by calling for an emergency meeting of the trustees to put to rest the fractionalization encouraged by the immediate leadership of the association.
A letter has also been written by Mr. A.C. Ozioko Esq. on behalf of Mr. Olasupo Ojo and addressed to Access Bank, Nig. Plc, the official banker of the NBA requesting for a suspension of operation on NBA accounts pending the takeover of the administration and management of the affairs of the association by the caretaker committee to be set up by the Chief Justice of Nigeria.
All of the foregoing forces a gloomy picture of an NBA mired in the shallow waters of a deep seethed internal crisis that appears to be in constant metamorphosis. It is akin to the monster which if not cut short at its development stages, risks growing larger than life to consume its tamer.
Yet in the middle of the whole confusion, the eyes of the legal community and other critical observers is fixatedly pointed in the direction of the NBA; an organization that prides itself as the assemblage of the best of gentlemen and who by the onions of their professional calling ought to be beyond reproach like the wife of Ceasar. They are obviously waiting to see whether its actions would be one that would vindicate the so much honour and respect the profession courts among the mass of Nigerian citizens and other global observers.
With this in mind, a more honorable path to thread would be for the Mahmoud Led NBA to abandon the unnecessary appeal which is a clear exercise in shifting the goal post; submit the reins of power to the trustees of the NBA in accordance with section 598 of the CAMA, LFN 2004 until such a time when a new EXCO would be formed in accordance with the valid constitution of the NBA. But being that honour, is a commodity so scarce in our clime, one wonders what steps the “brave new bar” of A.B. Mahmoud would take.
While the legal community in Nigeria prepares for the forthcoming Annual General Conference scheduled to hold in Lagos later this year, and while the decision of the Court of Appeal is also awaited, it is the expectation of this writer that the top echelons of the Bar would meet and mate in the overriding interest of the continuous existence of the NBA by devising realistic measures within the framework of the law to save arguably the most respected body of professionals in Nigeria from self destrcuct as has become the lot of the ‘opposition’ PDP.
May it not be heard that an organization which thrives under the motto of “Promoting the Rule of Law” is found wanting in the application of the rich ‘gospel’ and ethos of the Rule of Law as propounded and popularized by A.V. Dicey that earned it national and international acclaim. An association that has championed the Rule of Law and Democracy in Nigeria must therefore strive to consolidate and be seen to consolidate and complement the sustenance of democracy in its internal politics.
It is therefore meet that the NBA should take a cursory look at its past; make copious lessons therefrom in order not to repeat the blunders of its past, especially at a time when the Nation needs the unity of the bar the most. The NBA as a unit is bigger than any legal practitioner in Nigeria be him or her of whatever standing at the bar. A. B. Mahmoud and his co-travellers with the greatest respect must not make a mess of our pot of porridge.
Let not the cynosure of all eyes dab its face in charcoal over the gargantuan ambitions of one of its own.
Nkannebe Raymond— a Lawyer, Youth Corps Member and Public Interest Commentator wrote in this essay from Enugu. Comments and reactions to email@example.com