By Sylvester Udemezue
A 24 January news report under the headline “Body Of Benchers Passes Vote Of Confidence On Chair, Wole Olanipekun, Set To Probe 2022 NBA Election” has it that the Body of Benchers has “resolved to set up a committee to look into reports of electoral malpractices surrounding the last [i.e., 2022] NBA general elections”. This leaves one wondering where the Body of Benchers gets the power to dabble into NBA national elections. Let’s go down the memory lane.
1️⃣. After the 2022 NBA national elections, a “National Election Appeal Committee of the NBA”, was set up to consider petitions as may be made by candidates who lost in the elections. A Guardian Newspapers’ report had it that “In line with the provisions of Section 14(1)(L) of the NBA Constitution 2021 (as amended), the NBA President, Mr. Olumide Akpata, had set up the NBA-NEAC with the mandate to, amongst other responsibilities, receive and determine complaints and disputes (petition) from candidates, who took part in the elections”.
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2️⃣. Then, following a Presidential Candidate’s (Mr. Joe-Kyari Gadzama’s) complaints against the composition of the Panel, on grounds of Nemo Judex In Causa Sua, the panel members resigned en masse. Guardian Newspapers of 2 August 2022 reported that “Following the letter written by Chief Joe-Kyari Gadzama (SAN), one of the presidential candidates, who lost in the recently concluded National Elections of the Nigerian Bar Association (NBA), members of the NBA National Election Appeals Committee (NBA-NEAC) have resigned their appointment”. The erstwhile Appeals Committee members in their resignation letter dated July 30, 2022, stated that it was to pave the way for a new National Election Appeals Committee to be constituted: “Regrettably, we the members of the NBA-NEAC have taken the collective decision to resign our appointments to pave way for you to constitute a new National Election Appeals Committee in which Chief J. K. Gadzama (SAN) would have enough confidence to ventilate his grievances against the conduct of the recently-concluded elections”.
3️⃣. In response, the NBA reconstituted the Committee following the mass resignation of members the initial Panel. “In a statement signed by NBA president, he said a new committee has been appointed. Members of the new committee are: the former Attorney-General of the Federation, Chief Kanu Agabi (SAN) as Chairman, former president of the NBA, Dr Olisa Agbakoba (SAN), member and Cecilia Madueke as Secretary. “The new Appeals Committee will have Mr. Rotimi Ogunyemi as its resident expert on IT and Mr. Olumide Babalola as counsel…” (see: Guardian Newspapers of 9 August 2022)
4️⃣. As Olumide Akpata explained while reconstituting the Committee, “The new Appeals Committee is empowered to direct, at the request of a petitioner, or in its discretion, an independent audit of the July 2022 elections, if the justice of the matter requires it, or if it would be necessary to further entrench confidence in the process”. The high-power Second Committee called for Petitions (if any) from aggrieved persons (if any). No Candidate submitted any petition to the second Committee until the set timeline lapsed. See: “NBA 2022: Gadzama Declines Electoral Petition Pending Independent Forensic Audit On The Election In A New Letter To Akpata”. ThenigeriaLawyer reported on 13 August 2022 that “In a letter written to the NBA President, dated August 11, 2022…the legal team for the 2022 NBA presidential candidate noted that the National Election Appeal Committee (NEAC) is a standing committee of the NBA which requires both appointments by the NBA President, and ratification by the National Executive Council (NEC) of the NBA.Citing section 14 of the NBA Constitution, Gadzama noted that the appointment so far made by the NBA President, Olumide Akpata, was not done in compliance with the extant provision of the law”. Thus, Mr Gadzama refused to make any complaints before the Panel. Please, note that by virtue of Section 14(1)(l) and section 14(2)(l) of the NBA Constitution, 2015, only the National Officers’ Election Appeal Committee is empowered to “receive and resolve electoral complaints and disputes arising from the election of
National Officers and the election of the representatives of the Association in the
General Council of the Bar”.
5️⃣. Now, on January 24, 2023, well over SIX (6) months (1) after the 2022 NBA National Elections, (2) after Mr. Joe-Kyari Gadzama and his team had refused to present any petition before the NBA-NEAC, and (3) after the well ochestrated but WOEFUL-FAILED attempts by some known Law Society of Nigeria (LSN) advocates and theirs (equally known) fanny embers, to destabilize the NBA, the umbrella body of all lawyers in Nigeria, and the UNDISPUTED LEADER of the Nigerian Bar, the Body of Benchers on its part is now reportedly planning to “set up a committee to look into reports of electoral malpractices surrounding the last NBA general elections”. (SEE: ThenigeriaLawyer: 24 January 2023).
(A). From where does the BODY OF BENCHERS derive the power to purport to look into or otherwise investigate any allegations arising from or connected to the NBA’s general elections? My Answer:
With due respect, I do not know of any law or other legal provisions that can be resorted to in support of the reported move by the BODY OF BENCHERS. The concept of Ultra Vires applies. “Ultra vires” is a Latin Legal term translated (in English to mean “beyond the powers”). The term is used to describe an act which requires legal authority or power but is then done/completed outside of or without the requisite legal authority (lexisnexis.co.uk). The act of a person or authority, is said to be ultra vires when the person/authority acts beyond the scope of the powers and purposes provided to him/it by law. Ultra vires acts are generally void. (see: Communities Economic Development Fund v. Canadian Pickles Corp., (1991) CarswellMan 402 (S.C.C.)) (PracixalLaw). See also, NOSDRA v. Mobil Prod. (Nig.) Unltd (2018) 13 NWLR (Pt.1636) 334. Where legal authority is required in order take certain actions, any action taken without any such enabling law or outside or in excess of the powers granted by law is said to be or to have been taken “ultra vires” and accordingly void and of no effect. The opposite of ultra vires is “intra vires”, (translated to “within the powers”), a term used to refer to an act done under/within proper legal authority. An ultra vires act is going to be totally void and it’ll not bind anyone; is not enforceable. Besides, any person with requisite locus standi (legal standing) may commence a legal action either for an injunction to restrain a planned ultra vires act or to nullify an act taken or law made ultra vires the person making the law or doing the act. Accordingly, if the BODY OF BENCHERS proceeds with its reported plans, their actions could be voided on grounds of lack of jurisdiction. The Body of Benchers should learn to keep within its legitimate boundaries in the legal profession. However (irrespective of how) well-intentioned an action of a person or a public institution is, if such an action is undertaken without adhering to due process of law, or is done without any supporting enabling law or in abuse of power, action itself becomes null and of no effect whatsoever (to the extent of its inconsistency with extant law or to the extent of its violation of due process). Thus, it’s respectfully submitted that anything done or actions taken without legal foundation must fail for being void ab initio.
(B). Is the Body of Benchers the Election Tribunal for NBA National Elections to whom NBA election petitions or complaints or “allegations of malpractices” are now made? MY ANSWER:
There appears to be NO law that empowers the Body of Benchers to constitute itself an electoral panel or to set up an Investigation Panel or Committee for purposes of dabbling into complaints arising from NBA national elections! If anyone of the Candidates in the last NBA national elections, has made any complaints to the BOB and raising “allegations of malpractices surrounding the last (2022) general elections,” such a complaint (in my opinion) is frivolous, incompetent and dead on arrival, being a complaint made to a Boby lacking the vires/jurisdiction to entertain such a complaint/petition, especially considering that none of the candidates had raised any complaints before the NBA-NEAC set up to consider such allegations. Filling such a complaint before the Body of Benchers is akin filing a murder charge before a customary court: an exercise in futility. If you were given an opportunity to make a complaint/petition before a competent Body and you failed to avail yourself of such an opportunity within the time allowed, would it not be mischievious, malicious, laughable and frivolous if you thereafter sent a complaint before a Body that has NO jurisdiction to entertain such a complaint?
It’s respectfully suggested that the Body of Benchers should learn to respect its lawful boundaries and accordingly shouldn’t meddle into any affairs outside its legitimate sphere of authority. In a paper titled, “Resolving Cunnundrums Regarding Legal Profession Regulation (Part 1)”, I discussed in details the scope of the powers and authority of the Body of Benchers, on pages 18-20 of the paper. (Please See: Udemezue, Sylvester, “Resolving Conundrums Regarding Legal Profession Regulation in Nigeria (Part 1)” (January 1, 2023). Available at SSRN: https://ssrn.com/abstract=4316170 or http://dx.doi.org/10.2139/ssrn.4316170. It is easily seen 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”.
What’s more! The major object of the paper titled “Legitimate Confines of Powers of the National Judicial Council in Appointment of Substantive Chief Judges for States in Nigeria: Gombe State as a Case Study” (by Sylvester Udemezue and Titi Hameed, PhD) is to offer disinterested and detailed discussions and clarifications, founded on law, as well to offer objective recommendations to all stakeholders in the processes leading to the appointing Substantive Chief Judges for States in Nigeria, especially with a view to encouraging all stakeholders, especially the NJC, to keep within the legitimate confines of their respective powers in order to avoid or minimize tensions, interruptions, distractions and crises. [See: Udemezue, Sylvester and Hameed, Titilola, “Legitimate Confines of Powers of the National Judicial Council in Appointment of Substantive Chief Judges for States in Nigeria: Gombe State as a Case Study” (June 24, 2021). Available at SSRN: https://ssrn.com/abstract=3889087 or http://dx.doi.org/10.2139/ssrn.3889087.]. In the paper, the authors conclude thus: “The authors believe that if the NJC appreciates the extent
of its lawful powers, as discussed in this paper, and stays strictly within boundaries of same, there would hardly be any reasons for tension or face-offs or standoffs among stakeholders, in the process of appointment of substantive Chief Judges of States in Nigeria; in turn, the institution of the judiciary and the system of administration of justice
in Nigeria would be better for it. It all boils down to the words of Benjamin Franklin:
“a place for everything, everything in its place”. It is lack of respect for boundaries that ignites standoffs, provoke crises and result in quarrels. Boundaries define us; they define what is ours and what is not. They show us where we end and where others begin, leading us to a sense of ownership as well as a sense of responsibility. Boundaries are a part of self-care; they are healthy, normal and necessary. However, the best way to teach others about keeping to their own boundaries is by enforcing and staying within our own
boundaries. Respect for rule of law, as opposed to rule of sentiments, is the way out. If we take care of rule of law, the rule of law would take care of us; all will be the better for
it”. The same is hereby recommended to the Body of Benchers, especially considering that the traditional legitimate jobs of the Body of Benchers particularly its role in the discipline of Legal Practitioners through the Legal Practitioners Disciplinary Committee (LPDC) is currently been performed very poorly. One then wonders why the Body of Benchers would delve into matters outside its statutory powers and functions when it has hardly fared well in the discharge of its traditional statutory powers. Today, disciple at the Bar is at an all-time low partly because the Body of Benchers’ Committee, the Legal Practitioners Disciplinary Committee (LPDC) which is partly responsible for considering and detrmining allegations of professional misconduct by members of the legal profession, has almost gone into a coma, and obviously become too inefficient and ineffective. Part of the reasons given by a cross section of lawyers in Nigeria for the noticed abysmal poor performance of the LPDC is the alleged continual undue interference in LPDC’s activities and proceedings by the Chairman and members of the Body of Benchers. Examples are found in the recent resignations of the Chairman and a member of the LPDC on grounds of undue influence and illegitimate interference by the chairman of the Body of Benchers:
🅰️. “BREAKING NEWS: LPDC Chairman Resigns, Accuses BOB Of Undue Interference” or “BREAKING NEWS: LPDC chairman Resigns, accuses BOB of Undue Interference”. The report had it, that “Life Bencher Mr. Emmanuel C. Ukala SAN has resigned his appointment as Chairman of the Legal Practitioners Disciplinary Committee (LPDC) citing lack of discipline and undue interference by the Body of Benchers (BOB) in the activities of the committee”. The learned silk then cited “the singular decision by the BOB Chairman Honourable Justice Bode Rhodes-Vivour to rule against the overwhelming views of the majority in favour of the minority portends grave danger to the maintenance of discipline in the Legal Profession”, stressing that “that the independence of the Disciplinary Committee, (LPDC) is of paramount importance in the scheme of things for maintenance of true discipline in the profession”. (see: DNL Legal And Style or BarristerNG of 22 February 2022).
🅱️. See also: “I CAN NO LONGER IN GOOD CONSCIENCE SERVE AS A MEMBER OF LPDC” – CHIEF FERDINAND ORBIH, SAN RESIGNS”. In a letter dated 24 February 2022 and titled “NOTICE OF RESIGNATION AS MEMBER OF LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE” Chief Orbih decried the lack of independence of the committee arising from undue influence and illegitimate interference by the BOB in the affairs of the LPDC. [See: BarristerNG; FEBRUARY 25, 2022].
Now, lest I forget, and this is speaking generally, I remember I once wrote that no person or institution can be of any help to any other or institution unless the person or institution has first effectively helped himself/itself. Peter Drucker said that you cannot help nor be able to manage the affairs of other people, unless you have effectively managed yourself/your own first. Shelley K. Wall said, “There is a reason flight attendants tell you to put your mask on first in an emergency…you cannot be important to anyone else if you are not first and foremost important to yourself. Thus if your house is on fire, the first thing is to work hard to put off the fire, and clear the debris, before chasing after other things. Again, if you have not done your job well and effectively, you can’t be allowed more jobs. But even when you’re to be allowed to bite more, you can’t be allowed to bite more than you can chew or to bite outside your legitimate horizons and boundaries. This boils down to the awesome saying: a place for everything and everything in its place.
1️⃣. Where a statute prescribes that an act MUST be done by a particular authority and in a particular way, that act can only be validly done by the relevant authority and in the prescribed manner. True or False? In SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC), the Supreme Court said (Per KARIBI-WHYTE , J.S.C ( Pp. 19-20, paras. F-C); and
2️⃣. In KWARA STATE POLYTECHNIC, ILORIN & IR V. SALIU & ORS (2012) LPELR-9695(CA), the Court of Appeal said (per OGBUINYA ,J.C.A (pp. 68-69, paras. C-B): “It is trite law that, if an enactment bestows on a particular person or authority the power to do a specific duty, it is only that person or authority, and none other, that can perform the assignment before it will receive the imprimatur of the law, see section 10(1) of the interpretation Act, Emuze vs. V.C., University of Benin (2003) 10 NWLR (Pt. 828) 378; NPA vs. Lotus Plastic Ltd (2005) 19 NWLR (Pt. 959) 158; Balonwu vs. Gov. Anambra State (2008) 16 NWLR (Pt. 1113) 236; UBN vs. Ayodare & Sons (Nig) Ltd. (2007) 13 NWLR (Pt. 1052) 567/ (2007) 4 KLR (Pt. 235) 2002.”
It’s respectfully submitted that no institution/authority other than the National Officers Elections Appeal Committee of the NBA, has legitimate authority to look into any allegations in re NBA national elections.
God bless and keep NBA!
Sylvester Udemezue (Udems)
(24 January 2023)