The NBA’s self-admission of not being a juristic person and how the Supreme Court was not properly guided in the recent decision in Wome Moses Esq. v Nigerian Bar Association (2019) LPELR-46918 (SC)
Please pardon my inelegant title, perhaps I was rattled by my recent discovery that the Nigerian Bar Association (NBA) is surprisingly not a juristic person according to the body itself and the Supreme Court of Nigeria as held in the recent decision in Wome Moses, Esq. v Nigerian Bar Association (2019) LPELR – 46918 (SC).
Lest I am accused of lifting the court’s ratio in isolation of the facts and circumstances of the case and also for the purpose of clarity as well as undiluted understanding of the court’s stand point, I shall set out the non-contentious facts as follows:
The Appellant, a legal practitioner practicing in Port Harcourt was briefed by a member of a family to represent him in a case involving family land. The Appellant’s client lost at the High Court and he appealed but while the appeal was pending, the Appellant (Wome Moses) allegedly partitioned the family land and sold them by representing himself as the family lawyer without valid authority.
The disgruntled family petitioned the NBA Port Harcourt branch which culminated in a referral to the Legal Practitioners Disciplinary Committee which ultimately found the Appellant guilty and consequently recommended the Chief Registrar of the Supreme Court to strike his name off the roll of legal practitioners.
The Appellant appealed to the Supreme Court against the NBA but did not join the Legal Practitioners Disciplinary Committee as a co-respondent and the NBA (sole respondent) filed its brief wherein it raised preliminary objection praying the Notice of appeal to “be struck out and dismissed for being incompetent as the court lacks jurisdiction hear the matter or alternatively, strike out the suit because NBA is not a juristic person and cannot sue or be sued eo nomine”.
In delivering the lead judgment, my lord, Augie, JSC held thus:
“Clearly, the Issue in this Appeal is whether the Respondent is a juristic person capable of suing and of being sued in its name, which is why Fawehinmi v. NBA (No.2) (supra), takes center stage in this Appeal, because the exact same Issue was determined by this Court in that case … The Court of Appeal, however, held to the contrary that the NBA is NOT a juristic person and so, it cannot be sued legally in its name. In agreeing with the Court of Appeal, this Court explained that – The Constitution of the NBA is not a statutory instrument- – It is a pure and simple private document, which members of NBA, were entitled to draw up in exercise of their right to provide a constitution for the Association to regulate its affairs. It was accorded its due superior position by the Legal Practitioners Act in the conduct of (its) affairs by the General Council of the Bar. This does not make the NBA a juristic person. It only gives the body recognition as a legal entity- – … Our Constitution in Item 48 of the Second Schedule provides that incorporation of professional bodies can only be attained through a legislation of National Assembly. This has not been done in this case. The bottom line is that the Respondent cannot be sued in its name, which is what this Court held in Fawehinmi V. NBA (No.2) (supra), decided in April 1989, and it is safe to say that nothing has changed since then for this Court to hold otherwise today in February 2019. The decision still stands; the Respondent is not a juristic person… In the final analysis, the Objection raised by the Respondent to the competency of the Appeal is sustained. The Respondent is struck out as a Party to the Appeal and the Appeal is struck out.” (Emphasis mine)
Further on the NBA’s juristic personality, my lord Onnoghen, CJN (Rtd) held thus:
“It should be noted that the Legal Practitioners Disciplinary Committee (LPDC) is not a party to the action leading to this appeal. The respondent is simply the Nigerian Bar Association (NBA), which by law is not a juristic person as it can neither sue nor be sued in a Court of law – see the case of Fawehinmi vs Nigerian Bar Association (NBA) (No 2) (1989) 2 NWLR (pt. 105) 558 at 595.”
Is the NBA not registered at the Corporate Affairs Commissions?
On his lordship’s part, Ejembi Eko, JSC held thus:
“I wish to add that if the Nigeria Bar Association (NBA) cannot be made a corporate entity either by legislation or under the Companies And Allied Matters Act (CAMA), then like the Legal Practitioners Disciplinary Committee (LPDC), the Legal Practitioners Investigating Panel (or Committee) should be clothed with juristic personality and clearly empowered as such to be also the prosecuting body on behalf of the NBA.”
His lordship’s observation came as a surprise to me because I have always had the impression that the NBA has been registered at the Corporate Affairs Commission (CAC) as incorporated trustees under part C of the Companies and Allied Matter Act. Nevertheless, upon reading the judgment under review, I searched and rediscovered that the NBA has actually been registered at CAC as far back as 8th August 1983 but such information was not brought to the court’s attention before coming to such conclusion.
It is my respectful view that although the Apex Court arrived at such conclusion on the strength of information at their lordships’ disposal, it is rather surprising that the NBA would by itself impugn its own juristic personality having been registered as far back as 1983 t
While the court relied on its earlier decision in the contentious case of Fawehinmi v NBA (No. 2) (1989) LPELR-1259(SC)2 NWLR (Pt. 105) 595, it is equally amusing that even while the Fawehinmi’s case was argued, none of the parties erudite senior counsel brought it to the court’s attention that the NBA was already registered at CAC at that time perhaps the court would have come to a different conclusion.
It is however hoped that the current administration of the bar would come out with a policy document on its status and perception of its own juristic personality so the issue ceases to be a subject of litigation and/or objection.
Olumide is the managing partner of Olumide Babalola LP.