Body of Bencher’s Interventionist Power In NBA’s Affairs Is Limited And Aimed To Avert Leadership Vacuum, Not A License For Unlawful, Interloping Meddlesomeness: A Legal Opinion (Part 2)
The powers of the Body of Benchers are contained in sections 3 and 10 of the Legal Practitioners Act (LPA), CAP L11, LFN, 2004. But, it appears that it is section 10 (2)-(6) LPA that permits the BOB to intervene in affairs of the NBA strictly upon the happening of certain events. Unfortunately, some lawyers have suggested that the BOB may rely also on the provisions of section 10(1)(c)LPA to intervene in NBA’s affairs. This commentary examines the provisions of these sub-sections of section 10 of the LPA vis-à-vis BOB’s powers in relation to NBA’s affairs and concludes that nothing in any of the mentioned sub-sections authorizes the BOB to institute any investigations into any elections of the NBA which have been concluded.
Section 10(1) provides that “The Body of Benchers shall be responsible for taking all measures (whether by making regulations pursuant to the powers conferred on it by this section or otherwise howsoever) which appears to it to be necessary or expedient for maintaining at all times the traditional values of the legal profession”. On its part, section 10(2)&(3) LPA provides:
“(2) Notwithstanding anything contained in the Constitution of the Association, the Body of Benchers shall have and may exercise any or all the power specified in subsection (3) of this section whenever — (a) the term of office of the officer or the elected members of the National Executive Committee of the Association has expired and it is impossible for the Association to hold the necessary elections for a period of 30 days thereafter; or (b) the Body of Benchers is satisfied that by reason of dispute among the members of the National executive Committee of the Association, it is impossible or impracticable for the National Executive Committee to undertake or continue its functions of managing the affairs of the Association; or (c) the National Executive Committee of the Association passes a resolution calling upon the Body of Bencher to exercise such powers”. “(3) Whenever the event specified in subsection (2) of this section occurs, the Body of Benchers shall have power to – (a) inquire into the cause of the default in holding the necessary elections or of the dispute among members of the National Executive Committee of the Association; (b) appoint (whether or not from among the Body of Benchers) such other suitable persons to run the affairs of the Association, and such persons shall be known as the Caretaker Committee of the Nigerian Bar Association (in this Act referred to as “the Caretaker Committee”)”.
By virtue of section 10(4), any Caretaker Committee set up under section 10(3)(b) LPA shall manage the affairs of the NBA for such period as the BOB may prescribe, but not exceeding 12 months.
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What section 10(2)(a) LPA says is that the BOB may intervene where it is IMPOSSIBLE or IMPRACTICABLE for the NBA to conduct necessary elections within 30 days of the expiration of the tenure of the immediate past National Executive Committee [s. 10(2)(a) LPA] or a crisis in the National Executive Committee HAS MADE IT IMPOSSIBLE/IMPRACTICABLE for the National Executive Committee to perform its functions. BOB’s intervention may take the form of an enquiry “into the CAUSE OF THE DEFAULT in holding necessary elections…” [see section 10(3)(a) LPA]; and/or setting up a Caretaker Committee to run the affairs of the NBA in order to avoid a vacuum in NBA leadership, because nature abhors vacuum [see section 10(3)(b) LPA]. Thus, in such deserving circumstances, the BOB may either investigate the cause of the INABILITY TO HOLD ELECTIONS [s. 10 (3)(a) LPA], or (without such investigations) set up a committee to manage NBA affairs for not more than one year [s. 10(3)(b) LPA].
The necessary implication of this provision is that, while the that BOB may investigate the cause of IMPOSSIBILITY TO CONDUCT NBA ELECTIONS, where NBA has already conducted elections and the winners have been sworn in, the BOB does not possess any power under any circumstances whatsoever to purport to set up a Committee to investigate NBA elections or any allegations of malpractices surrounding NBA elections, or otherwise meddling in the elections or otherwise in NBA’s affairs unless any of the following two other events then happens:
(A). There’s a crisis in the National Executive Committee which has made it impossible or impracticable for the National Executive Committee to continue with its job under the NBA Constitution [see section 10(2)(b) LPA]; or
(B). The National Executive Committee has passed a resolution calling on the BOB to intervene. [see section 10(2)(c) LPA].
With due respect, it is incorrect for anyone to argue that there’re circumstances upon which the Body of Benchers is legally empowered to investigate NBA’s Elections or allegations of malpractices arising from any NBA elections; NO part of section 10 of the LPA gives any such power to the Body of Benchers. Indeed, after a successful conduct of NBA national elections, the only body with legitimate power/jurisdiction to look into the elections or any allegations arising from the elections is the National Officers Elections Committee of the NBA. [see section 14(1)(L) and (14)(2)(L) of the NBA Constitution]. The NBA Constitution, 2015, is recognized by extant statutes in Nigeria, and has the force of law, although where any provisions in the NBA Constitution are inconsistent with the provisions of the LPA, the LPA must prevail. Luckily, there appears to be NO provision of the LPA that could be considered inconsistent with the provisions of section 14(1)(L) and (14)(2)(L) of the NBA Constitution.
At this juncture, the facts of the scenario leading to the present controversy need to be recalled:
(A). The Nigerian Bar Association (NBA) conducted its national elections in July 2022, which led to election of members of the National Executive Committee of the NBA who later got sworn in, on 26 August 2022;
(B). The NBA had immediately after the elections, constituted the National Officers Election Appeal Committee of the NBA (NBA-NEAC). However, following complaints raised by one of the Presidential candidates, Mr. Joe-Kyari Gadzama, SAN, of likelihood of bias on the part of some members of the NBA-NEAC, all members of the NBA-NEAC resigned en masse on July 02, 2022. Thereafter, a new NBA-NEAC was constituted, which called for petitions (if any). Surprisingly, Mr Gadzama, SAN, declined to send his complaints to the reconstituted NBA-NEAC. The time set out for filing of petitions expired without the NBA-NEAC receiving any petitions/complaints from any candidate. All these were in July 2022.
(C). Then, suddenly, on 24 January 2023, the Body of Benchers announced its decision to constitute a committee to “investigate allegations of malpractices surrounding the last NBA national elections”. This sudden decision of the BOB, coming six months after the 2022 national elections, has led to argument among lawyers as to whether or not the BOB has powers to investigate NBA elections, and as to the actual object of such an investigation.
In Part One of my reaction to this latest controversy, titled “Body Of Benchers Lacks Jurisdiction To Conduct Investigations Into Any Elections Of The Nigerian Bar Association”, I argued that the BOB possesses no such powers to investigate any elections of the NBA. [The piece was published in BarristerNG; TheNigeriaLawyer; LawAndSociety; NewsWireLawAndEvents, etc, on 24 January 2023). It was my conclusion in the said commentary, that ‘…even the powers reserved for the BOB under section 10 (2)-(5) of the Legal Practitioners Act, CAP L11 LFN 2004 does not by any stretch and under any circumstances extend to investigating or setting up a committee to investigate (purported) “allegations of malpractices surrounding NBA elections”. However, following further suggestions that somewhere within section 10(1)(c), (2), & (3) of the Legal Practitioners Act (LPA) could possibly lie some legal justification for BOB’s decision to investigate the 2022 NBA elections, the present part (Part Two) has become necessary, dedicated to offering an objective interpretation of, and projecting the actual horizons of the powers donated to the BOB under section 10(1)(c) and section 10(2)&(3) of the LPA, to see whether there is anything in any of those provisions that could be relied upon to justify the actions of the BOB in constituting a committee to investigate NBA 2022 elections. For this purpose, three major canons/principles of statutory interpretation are considered relevant: (1) The “Expressio unius est exclusio alterius” Rule, (2) The “Generalia Specialibus Non Derogant” Rule; and (3) The purposive and the Mischief Rules: .
(1). The “Expressio unius est exclusio alterius” rule states that the express mention of one thing in a statute excludes all other things not mentioned therein. Section 10(2)&(3) LPA does not leave anyone in doubts about the specific/particular and LIMITED instances that could warrant BOB’s intervention in NBA’s affairs including NBA’s elections. From those provisions, it is clear that the makers of the statute do not intend nor expect the BOB to possess (or to otherwise arrogate to itself) wide and unrestrained powers to interfere in NBA ‘s affairs, anytime the BOB wants or as it wants. This is because the BOD is not, and not meant to be, a controller nor a leader or supervisor of NBA’s affairs, NBA being an independent association of all lawyers in Nigeria, the undisputed leader of the Nigerian Bar and therefore able and capable of running its own affairs and also handling and resolving any internal squabbles or crises (if such arises) without any meddlesomeness by any other association. Thus, the powers given to the BOB in section 10(2)-(6) LPA are SPECIAL-PURPOSE powers, meant solely and strictly to avert (and may only be activated for the sole purpose of preventing) any repeat of the ugly scenario/crisis of the early 1990’s which had left the NBA without any leadership at the national level for years. Recall that, as a result of leadership crisis, NBA had no President at the national level between 1992 and 1998, and was run at the Branch level only. It is this very mischief that section 10(2)-(6) LPA [which was introduced by the LPA (Amendment) Act of 1994 (Decree 21 of 1994)] has come to cure; it is not a license or a cloak for the BOB to engage itself in an unauthorized intermeddling or other meddlesome intrusiveness in NBA’s affairs. Thus, outside the three specific conditions/instances expressly stated in section 10(2) LPA and outside the limited and express powers given to the BOB (in section 10(3) LPA) in the event of any of those instances arising/occuring (the purpose of this special power being solely to avert a leadership vacuum in the NBA, and not to give the BOB any supervisory powers over NBA’s affairs), any other conditions or circumstances not therein mentioned is IMPLIEDLY AND NECESSARILY EXCLUDED. Thus, conduct of investigations into the elections of the NBA (at any time when none of the conditions mentioned in section 10(2) has occured) clearly falls outside the power donated to the BOB in section 10 (2)&(3) LPA. If the makers of the LPA had intended to include “investigations into the elections of the NBA”, the LPA would have included same. The fact that the LPA does not include such means that such was/is not intended by the makers of the LPA. In a paper titled, “Does the Nigerian Federal Legislature Have Constitutional Powers to Summon the President of the Republic Over Matters of National Importance?” Udemezue and Chioke give more insights into the operation and application of this rule:
“… the Expressio unius est exclusio alterius” Rule of Statutory Interpretation … states that the express mention of one thing in a statute excludes all other things not mentioned therein. This is illustrated in the case of R v Inhabitants of Sedgely.29 The “Noscitur a sociis” Rule appears also relevant; it postulates that “words (used in a statute) have no meaning except in the context they are used”.30 The meaning of an enactment must be ascertained from its text, in light of its purpose and in its context. The legislature must be taken in a statute to have said exactly what it means, and also to mean exactly what it has said therein. It therefore goes without saying that interpretation of a word or expression must depend on the text and the context. In People v. Jefferson,31 the California Court of Appeals, 4th District, USA, observed that the role of the courts in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. Also, according to the Court of Appeal of the US state of Indiana,32 “the first and often last step in interpreting a statute is to examine the language of the statute”. Indeed, the statutory test should be both the ending point as well as the starting point of statutory interpretation.33 This is because words are the skin of the language, while language is the medium of expressing the object that a particular provision or the Act seeks to achieve”.
(2) Generalia Specialibus Non Derogant. The Latin legal maxim and canon of statutory interpretation, “generalia specialibus non derogant” is relevant also. The maxim states that “general provisions in a statute must yield to special or specific provisions in the same statute.” See DORE V. VERDOM  2 SCR 862. Thus, when a matter falls under any specific provision, then it must be governed by that provision and not by any general provision in the same statute. General provisions in a law must admit or submit to specific provisions in the same law, on the same subject. The reason offered by the courts in support of this principle of interpretation is that the legislature, having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a any general enactment or provision to derogate from its own act when it makes no special mention of its intention so to do. See LALONDE V. SUN LIFE  3 SCR 261; IBORI V OGBORU (2004) 15, NWLR (PT 895) 154; In AKINDOLIRE V. AKINDOLIRE (1977) 1 FCAR, 148, the Court explained that “On the maxim of generalia specialibus non derogant,’ the position of a… Special Act will not be affected by that of a … general Act although inconsistent with the … particular Act and although they deal with the same subject matter”. [See: “The Onnoghen Asset Declaration Dispute: A Dispassionate Look At Nigerian Bar Association, Its Traducers And The Verdict Of History”, By Sylvester Udemezue; Legalnaija | February 17, 2019].
Now, in support of legal practitioners who argued that even if the BOB cannot rely on section 10(2)&(3) LPA, section 10(1)(c) of the Legal Practitioners Act could be cited in support of BOB’s said actions, respected learned friend Fernandez Obiene wrote that “… [pursuant to section 10(1)(c) LPA] the BoB can take all steps, whether provided for it under section 10 of LPA or otherwise (including by way of investigation), that it appears to it to be proper to maintain the traditional values of the legal profession. By this, if investigation the NBA election is, in the view of the BoB, necessary to maintain the values of the profession, it has powers to do so. And by virtue of Section 10(1)(d) it can sanction lawyers too if they misbehave”. With due respect to my very respected learned friend and to anyone who agrees with him, I humbly submit that it is clear beyond doubt that the Body of Bencher cannot validly rely on section 10(1)(c) of the LPA to meddle in the affairs of the NBA, either by instituting an investigation into any concluded elections of the NBA or in any manner. Section 10 (1)(c) LPA falls into and relates to GENERAL POWERS of the Body of Benchers to maintain the traditional values of the legal profession. On its part, section 10(2)&(3) LPA provides for the SPECIFIC conditions and instances in which the Body of Benchers may interfere or intervene in the affairs of the Nigerian Bar Association to avert a leadership vacuum. Section 10(2) provides that “…the Body of Benchers may exercise any or all of the powers SPECIFIED in subsection (3) of this section whenever”: the tenure of office of the an NBA National Executive Committee has expired and, within thirty (30) days from the date of expiration of the tenure of office of the immediate past National Executive Committee, the NBA is not able to conduct another election to fill in the vacancy created by the expiration or where the BOB is satisfied that by reason of dispute amongst National Executive Committee of the NBA, it is impossible or impracticable for the National Executive Committee of the NBA to undertake or continue its functions of managing the NBA; or the NBA National Executive Committee passes a resolution calling upon the BOB to exercise such powers. It is obvious that the power donated to the Body of Benchers by section 10(2)&(3) LPA is a SPECIFIC/SPECIAL POWER. Thus, objectively applying the “generalia specialibus non derogant” rule of interpretation, it is respectfully further submitted that, in relation to NBA, section 10(1)(c)LPA which contains a general power of the BOB must be interpreted, applied and implemented subject to the provisions of section 10(2)&(3) LPA which contains a SPECIFIC or SPECIAL POWER. Accordingly, it is not correct to argue that the BOB Benchers could rely on its general powers in section 10(1)(c)LPA to interfere or intervene in the affairs on the Nigerian Bar Association. Specifically, the Body of Benchers cannot rely on 10(1)(c)LPA to perform any functions or exercise any powers that are not specifically provided in section 10(2)&(3) LPA. This is because section 10(1)(c)LPA does not donate any powers to the Body of Benchers (for purposes of interfering in NBA’s affairs) beyond the specific powers donated in section 10(2)-(6) LPA LPA.
What’s is more? As could be seen in the pronouncement of the court in the case of AKINDOLIRE V. AKINDOLIRE (supra), the “generalia specialibus…” rule would not even apply where the general powers/provisions and the specific powers/provisions relate to different (not the same) subject matter. It is seen that while section 10(1)(c) LPA relates to BOB’s power to take steps towards general maintenance of the traditional values of the legal profession, section 10(2)-(6) on the other hand relates specifically to when the BOB may intervene in NBA’s affairs (to prevent s leadership vacuun).
(3). The purposive and the Mischief Rules:
In a published commentary titled “Ikeja Branch Elections, NBA NEC Resolutions And The Concept Of Non-Retroactivity: A Detached Delineation Of Section 6(3) Of The Uniform Bye-Law” [21 September 2020: TheNigeriaLawyer], I wrote as follows, to explain the purposive and mischief rule of interpretation:
“The purposive approach (sometimes referred to as “Purposivism,” “Purposive Construction,” “Purposive Interpretation,” or “The Modern Principle In Construction”) is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause in a constitution) within the context of the law’s purpose. Purposive interpretation is a derivation of mischief rule as set out in Heydon’s Case. According to this rule, while interpreting statutes, first the problem or mischief that the statute was designed to remedy should be identified and then a construction that suppresses the problem and advances the remedy should be adopted. Heydon’s Case illustrates the Mischief Rule of statutory Interpretation whose main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would “suppress the mischief, and advance the remedy”. Put differently, in applying the mischief rule, the court is always “to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act.” (see: “Mischief Rule” (Wikipedia June 10, 2020) <https://en.wikipedia.org/wiki/Mischief_rule> accessed September 21, 2020”
I discussed what I consider to be the appropriate use these rules in another published commentary: “Entry Into Court Premises Guidelines No 2 Cannot Apply To Override Provisions Of The 1999 Constitution” [By Sylvester Udemezue; TheNigeriaLawyer; April 07, 2020]. The whole essence of the purposive approach to interpretation of provisions of statutes and of the Mischief Rule, is that provisions in statutes must be deployed only towards realizing/achieving the very objective intended for them by the makers of the statues, and for no more. The discussions above and another look at the provisions of section 10(2)-(6) LPA leave no one in doubt about the direct, precise and specific objective of the provisions: when BOB may intervene to avert leadership vacuum in the NBA. There is nothing in section 10 of the LPA that makes the BOB a lord over the NBA or otherwise authorizes the BOB to carry itself unnecessarily into the affairs of an independent association such as the NBA is.
Further, it is submitted that the words used in the said section 10 make it clear beyond reasonable doubt that it is not the business of the BOB to resolve crises in the NBA. There is no organisation, association or institution anywhere in the world, that is immune from crises. Crises are bound occasionally to occur, although I am not aware that NBA is currently engulfed in any crisis at all. But, even if there is any crisis or discontent within the NBA, such is normal; it is for leaders of the Bar in such circumstances, to sit down and resolve same, provided such a crisis doesn’t degenerate to the level where it has now become impossible or impracticable (as a result of the crisis) for the NBA management to discharge its statutory duties. Put differently, and relying on the express provisions of the LPA in section 10, it is only when a crisis in the national leadership of the NBA has reached such level/height as to make it impossible and impracticable for the National Executive Committee of the NBA to perform its statutory and constitutional functions, that the BOB may be at liberty to intervene. Until then, the BOB has no business in NBA’s affairs, because no law (statute or case law) has appointed the BoB a Lord and Master over the NBA. The NBA remains the umbrella body of all lawyers in Nigeria, with authority over all members of the Bar, including all lawyers who are members of the Body of Benchers. Thus, it is for the NBA to rule over or control the BOB and not for the BOB to control or lord it over the NBA. This is not about sentiments; it is all about law and the need to respect legitimate boundaries. The provisions of section 10 (2)&(3) are too unambiguous to cause any controversy. I repeat that the BOB may only intervene where (A) it is IMPOSSIBLE or IMPRACTICABLE for the NBA to conduct necessary elections within 30 days of the expiration of the tenure of the immediate past National Executive Committee [s. 10(2)(a) LPA] or (B) a crisis in the National Executive Committee HAS MADE IT IMPOSSIBLE or IMPRACTICABLE for the National Executive Committee to perform its statutory functions or (C) the National Executive Committee has of its own volition by resolution, invited the BOB to come in. None of these conditions or instances has occurred in the present scenario. So, intervention by the BOB is absolutely uncalled for, unwarranted and therefore ultra vires, amounting to an interloping meddlesomeness or meddlesome intrusiveness. This (my) position is strengthened when one recalls that section 10(3) LPA which spells out the two powers the BOB may exercise upon the occurrence of any of the circumstances or conditions precedent [set out in section 10(2) LPA], begins with a sort of WARNING, saying that it ONLY “Whenever any of the events specified in subsection (2) of this section occurs, [that] the Body of Benchers shall have power to…” either (A) conduct an enquiry into the cause of default in holding the necessary elections or of the dispute among members of the National Executive Committee [see section 10(3)(a)] or (B) appoint a Caretaker Committee to run the affairs of the NBA [see section 10(3)(b)]. In other words, it would amount to an authorized, illegal intermeddling for the BOB to purport to involve itself in NBA’s affairs at a time when NONE of the above-mentioned events has occurred. Besides, even at that, the BOB may only investigate the cause of the impossibility in conducting NBA’s national elections or set up a Caretaker Committee; there is ABSOLUTELY NO room for the BOB to interfer after the necessary elections have been held and winners sworn in. BOTTOM LINE: let the BOB stay within its own legal limits and stop this continual interloping interference in the affairs of other bodies in the legal profession.
Permit me to respectfully observe on a sad note, at this juncture, that all these are coming at a time when the BOB has evidently performed woefully in the job of lawyers’ professional discipline which is legally assigned to it. It’s said that the reward for good performance is more responsibilities. While the reward for woeful performance is that nothing more should be given to you. In my humble opinion, the BOB has failed woefully in discharging that all-important function/duty; the Legal Practitioners Disciplinary Committee (LPDC) is at the present time very ineffective, perhaps because it is being unduly influenced by the BOB which reportedly/allegedly doesn’t allow the LPDC to function independently as it should. One other reason the LPDC may be said to be in a coma, is that, instead of settling down on its statutory role of lawyer professional discipline, which is very enormous and strenuous, the BOB appears of late to be more interested in, indeed carried away by, working to change all extant laws with a view to wrestling controlling authority from the NBA, and all others regulators including even the Council of Legal Education. So, no one should look any further for reasons why discipline at the bar is asleep; the body that ought to perform that role is busy pursuing other needless objectives. Lawyers professional discipline in Nigeria is at present so weak and ineffective that a Professor of Law, Mr. Charles Adekoya recently declared that many Nigerian lawyers cannot practice in the United Kingdom “due to their [Nigerian lawyers’] penchant for sharp practices and unethical conduct”. According to the renowned learned Prof, many Nigerian lawyers would have lost their license or been fined on the grounds of unprofessional practices. Hear the Prof: “a Barrister could be sanctioned for unnecessarily appealing against a concluded matter or for bringing an appeal that is baseless, including the award of cost and report to the regulatory body which might lead to the Barrister being debarred. Many of our colleagues could not practise in the UK as they would have had costs awarded against them or even lose their licences on grounds of unethical or professional misconduct”. [See: “Why many Nigerian lawyers cannot practice in UK – Varsity Don”; December 15, 2022: Daily Post]. On the other hand, in February 2020, some prominent lawyers in Nigeria (Chief Wole Okanipekun, SAN, and Chief Afe Babalola, SAN) were fined by the highest court in the land for filing frivolous suits. Till date, there is no evidence that they’ve paid that penal fine. The Cable had on 15 February 2020, reported that “The Supreme Court has imposed a N30 million fine on [each of] Afe Babalola and Wole Olanipekun, two senior lawyers, over the application for a review of its judgment on Bayelsa governorship election”. Hear the Hon Justice Amina Augie, JSC, who read the lead judgment on behalf of the seven-man panel of the Supreme Court:
“With tears in my eyes, I cannot believe that in my lifetime, I would see very senior members of the bar bring applications of this nature to this court which are aimed at desecrating the sanctity of this court, violating the principles and decisions of this court and destroying the esteem on which this court is held. The applications are vexatious, they are frivolous and gross abuse of court process. In the circumstances, the two applications are hereby dismissed and the cost of N10 million each is awarded against the first, second and third applicants respectively in favour of the first, second and third respondents to be paid personally by their respective counsels”. [See: “‘No force on earth can change our decision’ — supreme court”; 26 February 2020: the Cable].
Long live NBA!!
Sylvester Udemezue (Udems)
(26 January 2023)