The Nigerian Bar Association (NBA) at the end of its 59th Annual General Conference, which held in Lagos last week, amended some sections of its constitution to reposition the association to meet future responsibilities but the development is generating controversy because of a 2016 Federal High Court judgment which had nullified the NBA’s 2015 Constitution. OLUGBENGA SOYELE examines the new amendments and the judgement, which is yet to be overturned by the Court of Appeal.
At a press briefing held to mark the end of its Annual General Conference which held from Aug. 23 to 26, the President of the Nigerian Bar Association (NBA) Paul Usoro informed journalists that part of the outcome of the association’s Annual General Meeting which held during the Conference, was a need to amend the associations constitution.
This was aimed at ensuring that “the associations national officers, and in particular, the president and the general secretary, must be persons of proven integrity, administrative skills and experience with demonstrated capacity to serve without expecting or having consideration for pecuniary rewards.”
One of the major amendments to the constitution is the replacement of the members of the board of trustees with new one, all of the old trustees had served on the board for over 14 years.
The NBA trustees will henceforth be led by human rights lawyer, and former President of the Association, Dr Olisa Agbakoba (SAN), other members of the committee are former presidents, Joseph Bodunrin Daudu (SAN) Augustine Alegeh (SAN), a past General Secretary, Obafemi Adewale, former Attorney General of the Federation, Kanu Agabi (SAN), and Hajia Fatima Kwaku.
The new trustees replace the one that had been in place since 2004 led by Alhaji Abdullahi Ibrahim (SAN). Other members of the old team include former presidents Chief Thompson, Onomigbo Okpoko (SAN), Wole Olanipekun (SAN), Chief Mrs Priscilla Kuye, Chief Anthony Mogbo (SAN), and Alhaji Murtala Aminu.
The new section 19 of the NBA constitution 2015 stipulates that the “Trustees shall hold office for a term of six years and shall be eligible for re-election for one more term only.
The AGM also approved the insertion of a new section, known as section 8(3)(e) to determine the qualities of any aspirant to the post of President and General Secretary.
It states thus: “The National Officers, in particular, the President and the General Secretary, must be persons with proven integrity, administrative skills and experience and with demonstrable capacity to serve without expecting or having consideration for pecuniary rewards and, or remunerations”.
The AGM also approved a new section 21 of the constitution which eliminated some national offices such as First Assistant Secretary, Second Assistant Secretary, Assistant Financial Secretary, and Legal Adviser.
According to the provision, the incumbent occupiers would be the last set to hold such offices as it would be scrapped henceforth.
Other amendments include section 8(6)(a) which states, “The National Officers shall meet once in every calendar month at such time and place as the president may direct provided that such meetings may be held via teleconference, video conference, or by any other electronic medium, means or platform. Subject to the further provisions of this Constitution, the President shall preside at the National Officers’ Meetings.
“Section 15(8), “Without prejudice to the preceding provisions of sub-paragraph (7), the National Executive Committee may, as necessary and required, impose sanctions upon the President and the Treasurer in the event of a failure by the Treasurer (a) to prepare and publish any of the financial statements and reports that are incumbent upon the Treasurer to publish under this Constitution; and/or (b) prepare and present to the National Executive Committee the Annual Budget of the Association as mandated by this Constitution.
Section 18(3), “Without prejudice to the preceding sub-paragraph (2), the President shall be the final authorizing person in respect of all electronic banking payments. Provided that all payments, electronic or not, shall be vetted and recommended for payment by the Treasurer and/or the General Secretary prior to the President’s approval and subsequent uploading (in the case of electronic payments) and payment authorization.”
“Section 23, This Constitution may be cited as the Nigerian Bar Association Constitution 2015 (as amended) and shall come into effect upon its being approved by the General Meeting this 29th day of August 2019”.
Despite these amendments, there is still a hurdle the NBA will have to cross, as the 2015 constitution under which the amendments were carried out has been declared null and void by a Federal High Court, sitting in Abuja.
Justice John Tsoho had delivered the judgment on March 27, 2017 in a suit filed by a former President, Committee for the Defence of Human Rights (CDHR), Olasupo Ojo, against the Incorporated Trustees of the NBA.
The court had also held that the amended constitution breached sections 597 and 598 of the Companies and Allied Matters Act (CAMA), especially as it relates to the registration of the amended constitution.
He further held that the effect of the non-registration of the constitution was to render it void, pursuant to Section 600 of CAMA.
The judge also dismissed the plea that the plaintiff lacked locus standi to bring the suit, noting that what was in issue was interpretation of the constitution of an association.
He further held that the Corporate Affairs Commission (CAC) need not be a party in the proceedings.
At the moment, the extant constitution is the amended Constitution which the NBA adopted at the delegates conference held in Calabar on 31st August 2001 as registered and approved by the CAC in line with CAMA.
After the judgment was delivered, Ojo wrote the Chief Justice of Nigeria (CJN), asking him to constitute a caretaker committee to take over the administration and management of NBA’s affairs pending the election of new officers under a constitution recognised by law.
He also filed Form 48 (Notice of Consequence of Disobedience to Order of Court) against all NBA officers.
It reads: “Take notice that unless you obey the directions contained in the orders and judgment of my Lord, Honourable Justice John Tsoho in the suit: FHC/ABJ/CS/545/2016 Olasupo Ojo vs the Registered Trustees of the NBA, which was delivered on the 30th of March 2017 and duly served on you, you will be guilty of contempt of court and be liable to be committed to prison.”
The Form 48 was issued to all the officers individually. They were described as “ousted” officers.
The court granted the plaintiff’s prayer for an order of perpetual injunction restraining NBA and its officers from conducting the association’s affairs on the basis of the constitution purportedly amended and adopted at the Annual General Meeting held in Abuja on August 27, 2015.
Although the NBA appealed the judgment, the appeal is still pending before the Court of Appeal. What is not yet clear however is if the new amendments can carry weight especially as there is a substantive case pending on its validity.
Some lawyers argue that the implication of the judgment was that it affected all the decisions the body had taken from 2010 and not just the election that brought in the 2016 executives.
However, the then President of the association, Abubakar Mahmoud (SAN) in an interview, on October 1, 2017, said a correspondence had just been received from CAC informing the NBA that the 2015 constitution of the Bar had been approved and registered.
He said, “We hope this will put an end to all controversies and litigations on the NBA Constitution,” Mahmoud said while waving the approved constitution in the air.
Mahmoud had insisted that the suggestion from the High Court judgment was that all that had been done since 2004 by the NBA had been legally wiped off. He said that was something considered as having far reaching implications for the legal profession and that it was capable of throwing the profession into complete disarray, adding that it was for this reason the NBA decided to appeal the decision.
He also said the complaint of the litigant as he understood it, was not that any of the NBA constitution was not validly passed or amended by its members and at properly convened general meetings.
“The complaint is that the constitution ought to have been registered with the CAC. I should point out that the process of registration of the 2015 constitution was initiated by the past administration of Mr. Alegeh. It was delayed but not abandoned.
“CAMA does not stipulate a time frame for this. The courts have not said that the constitution cannot be registered. So we view this as an irregularity; which can be cured,” he said.
But the lawyer who challenged the 2015 constitution, Ojo, told LEADERSHIP that until the appeal is heard and determined, no amendment of the 2015 constitution can be said to be valid.
“The court has already declared the 2015 constitution as invalid, and any amendment thereto would also be invalid. I will advise the NBA leadership to do the needful by registering their constitutions with the Corporate Affairs Commission (CAC), and stop all these arrogance.”
Ojo feels that the NBA is a monopoly that has outlived its usefulness, and instead canvassed for multiple lawyers associations.
He stated, “The Monopoly of a single bar association can only pretend to cater for the welfare of members. The pretention and deceit should end.
“Assuming 12,000 lawyers truly attended the last AGC, is it sane to box 12,000 into a single conference or jamboree? Vis-a-vis the total number of lawyers in Nigeria, what percentage of lawyers took part in the conference and their AGM?
“The obvious truth is that majority of lawyers in Nigeria are against NBA monopoly. There’s urgent need for another platform. It is wrong, oppressive, fraudulent, abuse of freedom of choice and unjust to continue to impose the minority NBA monopoly supporters over opposing majority using the force of law.
It is a recipe for anarchy. No injustice lasts for long. There is awareness now”, he concluded.