A Comment by Sylvester Udemezue
Gentlemen, I have got a copy of the originating processes from TheNigeriaLawyer. I can confirm that the Registered Trustee of the NBA is sued as the first Defendant in suit number:
FHC/ABJ/CS/1426/2022, challenging the 15 August 2022 suspension of Joyce Oduah as the NBA General Secretary (NBA GS). Temitope Onabanjo wrote on DNLLEGALANDSTYLE, and I agree, as follows: ‘The meaning of lis pendens is – ‘a pending legal action’, wherein Lis means the ‘suit’ and Pendens means ‘continuing or pending’. The doctrine has been derived from a latin maxim “Ut pendent nihil innovetur” which means that during litigation nothing should be changed’.
Gbenga Ojo wrote, “Lis pendens denotes those principles and rules of law which define and limit the operation of the common law maxim, to the effect that nothing relating to the subject matter of a suit can be changed while the suit is pending”. See: ”Defining the Scope and Limit of the Doctrine of Lis Pendens: Need for a Restatement of Principles” by Gbenga Ojo (públished in The Gravitas Review of Business & Property Law, Vol.6 No.3 (Sept 2015)
Pages: 11.
The implication of the aforesaid, in the instant case, is that no arm, organ or section of the NBA is entitled to take any further steps in respect of the suit unless and until the final determination thereof. Accordingly, the following are barred from taking any further steps in respect of the subject matter: NBA-AGM, NBA-NECouncil, NBA-NECommittee, NBA-SBL, NBA-SLP, NBA-SPIDEL, NBA President, etc. In respect of any further steps taken by any of these while this case is pending, a disciplinary injunction may lie to quash it.
However, this is not the end of discussion. A second question raised is what would amount to “further steps” especially in the following instance. MRS Joyce Oduah was suspended by the NBA-NECommittee on 15 August 2022. She filed an action on 16 August 2022, challenging the suspension. The implication of Mrs Oduah’s action is that she had acknowledged that she had already been suspended although she says illegally, because she doesn’t agree that the NBA-NECommittee has powers to do what it did. On 21 August 2022, the NBA-NECouncil (an organ of the NBA) “ratified” the suspension, saying it wouldn’t talk about “removal” since the matter was in court. With due respect to NBA-NECouncil, the subject matter of the suit is SUSPENSION and not REMOVAL. By taking steps on suspension, you’ve taken steps on the subject matter. LoL. Recall that Section 3(11) of the NBA Constitution says one of NBA ‘s major objectives is to promote Rule of Law and human rights.
So, NBA-NECouncil obviously took steps in respect of the subject of the pending suit. However, another question is, can the NBA-NECouncil be said to have taken a “further step”_ which has altered the status quo while a case is pending?
1️⃣. Some say no because even Joyce Oduah had admitted she had been suspended albeit illegally. So, all the NBA-NECouncil did on 21 August 2022 was to say let the status quo (the suspension of Joyce Oduah) remain in place pending the determination of the case in court. They ask: How does this amount to any further steps? How does this alter the status quo?
2️⃣. On the other hand, some others would argue that the NBA-NECouncil has on 21 August 2022 actually taken a further step and has thereby altered the status quo when the NBA-NECouncil (an organ of the NBA, and as such a party to the pending suit) took a decision to suspend or (as they called it) to ratify the PURPORTED suspension of Joyce Oduah, the claimant in the case already pending in court. How does the action of NBA-NECouncil amount to a further step? The proponents of this argument would answer this way: ▪️NBA-NECommittee “suspended” Joyce Oduah on 15 August 2022 saying it acted in pursuance of section 9(6)(d) of the NBA Constitution▪️Joyce Oduah went to court on 16 August 2022, to challenge the “suspension”. One of her major grounds for questioning the suspension is that NBA-NECommittee does not have the powers to suspend her, and that even if they do, that the suspension violated all rules of due process. Accordingly, the actual status quo is before 21 August 2022 was *”suspension by the NBA-NECOMMITTEE in pursuance of *section 9(6)(d) of the NBA Constitution” and not suspension by the NBA-NECouncil, púrsuant to section 20(1), which is an entirely different thing and only happened on 21 August 2022. The best way to agree that the two are entirely different is, assuming the initial suspension on 15 August 2022 was done by the NBA-NECouncil, do you think Joyce Oduah would have gone to court to challenge the powers of the NBA-NECouncil to suspend her, bearing in mind the provisions of section 20(1) of the NBA Constitution, 2015 which expressly confers on NBA-NECouncil powers to remove any National officer from office. If the NBA-NECouncil has powers to remove, powers to suspend is implied. Thus, by taking a decision to ratify the NBA-NECommittee-suspension of Joyce Oduah, the NBA-NECouncil has altered the original status quo which was suspension by NBA-NECommittee.*
Another, easier way to agree that the status quo was actually altered on 21 August 2022 is to ask whether suspension by NBA-NECommittee is exactly corteminous with suspension by NBA-NECouncil. Note NBA-NECommittee had acted pursuant to section 9(6)(d) of the NBA Constitution while NBA-NECouncil acted in pursuance of its powers under section 20(1). Further, does suspension by the NBA-NECommittee have the same legal effects as a suspension by the NBA-NECouncil? The answer to the last question is no. While the decision taken by NBA-NECommittee to suspend Joyce Oduah can’t stand unless ratified by the next NBA-NECouncil meeting, on the other hand, a decision by the NBA-NECouncil to suspend Joyce Oduah automatically becomes effective without the need for any further action by anyone. Hence, it could be argued that NBA-NECouncil’s purporting to “ratify” the suspension done by NBA-NECommittee actually amounts to NBA-NECouncil taking a decision to suspend Joyce Oduah. This appears to be an entirely different step from the suspension done by the NBA-NECommittee.
▪️ Another issue that arises is, could NBA-NECOUNCIL, a party to the pending suit, validly and legally proceed to take any action on the subject matter of the pending suit? I believe no one will validly argue that an action against the NBA is not an action NBA-NECouncil. That would be a bizarre argument to advance.
So, there is no doubt that NBA-NECouncil is a party to the pending suit.
The next question to ask is, has the decision of the NBA-NECouncil on 21 August 2022 not foisted a situation of hopelessness and helplessness on the Court before whom the case is pending. Has the 21 August 2022 decision of the NBA-NECouncil not overreached the pending suit on the subject?
What the NBA-NECouncil did on 21 August 2022 could be interpreted thus: it’s possible the NBA-NECouncil is perhaps saying, “Look, guys, since she went to court to argue that NBA-NECommittee does not have powers to suspend her, let’s frustrate her by suspending her since at Least, we have the power; in this way, she would not have any reasons to wriggle out, since our own powers to remove/suspend is expressly set out in the NBA constitution. Yes, alleluia alleluia, eureka, even if the FHC declares suspension by NBA-NECommittee illegal on grounds that NBA-NECommittee lacks such powers, she would still remain suspended based on our own suspension which is expressly set out in the NBA Constitution. We have won!💃💃🕺🕺”. It could therefore be said that what the NBA-NECOUNCIL, a party to the pending suit, did on 21 August 2022 was to frustrate the court and the litigant by rendering nugatory, of no use, whatever order the FHC decides to make in the case in respect of the suspension by the NBA-NECommittee.
Some may be forced at this juncture to ask: if this is not a violation of lis pendens, what else is? If this is not a gross violation of the principle set out in Military Governor of Lagos State v. Odumegwu-Ojukwu, what else is? If this action by the NBA-NECouncil, a party to the pending suit, to frustrate a court of law, is not contempt of court, what else is? If this is not self-help through the back door, what’s it? The Court of Appeal in Akiboye v. Adeko (2011) 6 NWLR (pat 1244) 415, said that the doctrine of lis pendens has evolved for the purpose of preventing one party from fraudulently seeking to overreach the decision of the court. However, for the doctrine to apply, the following mandatory conditions must be fulfilled:
(I). That at the time of taking the action complained of, the suit regarding the dispute/subject was already pending. The doctrine of Lis pendens will apply only if the action was taken after the matter was already brought before the Court.
(II). That the other party had been served with the originating processes in the pending action, and
(III). That the action complained of relates to the subject of the dispute and is capable of overreaching the decision of the court in the suit.
Gentlemen, it may be further reasonably argued that the NBA-NECouncil has (by its decision of 21August 2022) frustrated both the Claimant in suit number FHC/ABJ/CS/1426/2022 (JOYCE ODUAH V. REGISTERED TRUSTEES OF THE NBA) and the Court. Considering the actions of the NBA-NECouncil on 21 August 2022, which in effect means (freshly) suspending Joyce Oduah (ie, means NBA-NECouncil has suspended Joyce Oduah pursuant to section 20(1) NBA Constitution), any decision of the FHC on the suspension done by NBA-NECommittee will not be of any use to Joyce Oduah since the later suspension by NBA-NECouncil will still be in place. Thus, any victory Joyce Oduah hopes to get at the FHC in FHC/ABJ/CS/1426/2022 will at best be a pyrhic victory, and of no use.
CONCLUSION:
The implications of NBA-NECouncil’s 21 August 2022 “ratification” of the suspension done by NBA-NECommittee on 15 August 2022 are as follows:
1️⃣. The action of the NBA-NECOUNCIL amounts to a fresh suspension of Joyce Oduah. In other words, even if the NBA-NECommittee didn’t do it well, the NBA-NECouncil has now “done it well”, since NBA-NECouncil has express powers so to do, under section 20(1).
2️⃣. The said action of NBA-NECouncil on 21 August 2022 is an obvious further step which has altered the status quo that was in place before 21 August 2022;
3️⃣. By virtue of the fact that NBA itself is a party to the pending suit, NBA-NECouncil being an arm/organ of the NBA, is a party to the pending suit, and is bound by both lis pendens and any outcome and legal implications or effects of the pending suit. The mere fact that the Court had not made any restraining order yet, is immaterial. See ‘Military Government of Lagos State V Emeka Odumegwu-Ojukwu (1986) 1 NWLR (Pt.18) 621, (2001); (2001) FWLR (Part 50) 1779 at 1800 where the Supreme Court stated as follows: “After a defendant has been notified with the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he (the defendant) acts at his own peril and subject to the power of the court to restore the status wholly irrespective of the merits as may be ultimately decided…. They [parties] have no right to take the matter into their own hands once the court was seised of it.”’ In the United States of America case of Porter v. Lee, 328 U.S. 246, at page 251, 66 S.Ct. 1096, at page 1099, 90 L. Ed. 1199, the court had declared that “where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.” See also Darnell Garcia v. John C. Lawn C.A.9 (Cal.) 1986 and Turney v. Shriver, 269 Ill. 164, 109 N.E. 708. In the case of Bello v. AG of Lagos State (2007) 2 NWLR (Pt.1017) pg.115, while the matter was still pending in court, the appellant did a publication in a newspaper in respect of the subject matter of the suit, the lower court held that the appellant (as applicant/plaintiff in the court below) was in contempt of court. The Court of Appeal in affirmed the decision of the lower court. See also Elf Marketing (Nigeria) Limited v. J. L. Oyeneyin And Sons Limited [1995] 7 NWLR (pt. 407) 371. In Peter Obi v. INEC (SC No:2) [2007] Vol. 9 M.J.S.C 1, the Supreme Court said, ““The 1st respondent (INEC) was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for the rule of law, which the Independent National Electoral Commission ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it…. As at 14th April 2007 when the 1st respondent (Independent National Electoral Commission) was conducting gubernatorial election in Anambra State, the seat of the governor of that State was not vacant. That election was a wasteful and unnecessary exercise. The 1st respondent (INEC) was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for the rule of law, which the Independent National Electoral Commission ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it.”
4️⃣.With due respect to NBA-NECouncil, the subject matter of the suit is SUSPENSION and not REMOVAL. By taking steps on suspension, you’ve taken steps on the subject matter.
5️⃣. NBA-NECouncil is thus not entitled to have taken any further steps in respect of the pending suit. If it did, as it has done, such action (further step) is liable to be quashed vide a DISCIPLINARY INJUNCTION. For meaning, scope, implication and uses of Disciplinary Injunctions, please find time to read my piece titled, “Contempt of Court: Why Nigeria’s Federal High Court is Right on Rivers State APC” By Sylvester Udemezue. . (Published on 7 and 8 January 2019 by BarristerNG, TheNigeriaLawyer, etc).My article had followed a Federal High Court order on Monday, 7 January 2019, nullifying the direct and indirect primary elections allegedly conducted by two factions of the All Progressives Congress (APC) in Rivers State. The court order itself had followed a suit filed by an APC governorship aspirant in Rivers State.. According to the presiding judge, both factions of the APC had acted in disrespect of a pending suit… by purporting to have produced candidates for governorship, national and state assembly polls, while the suit was still pending. In my said article, after taking a position, I had counseled all and sundry, as follows:
“A final lesson one must take away from all these is that litigants and their lawyers alike who are involved in proceedings before courts of law must imbibe the appropriate manner of dealing with pending courts proceedings, court orders and the judiciary as a whole, bearing in mind what negative or disastrous consequences their contemptuous and disdainful conducts towards judicial officers and their orders may have on the litigants themselves, and on administration of justice and rule of law, without which democracy cannot survive”.
Meanwhile, the Federal High Court decision subsequently went up to the Supreme Court through the Court of Appeal. I am happy to announce that my position in the article which (was written on the same date the Federal High Court decision) was later endorsed by the Supreme Court of Nigeria. Glory be to God ! Please, see also my humble thoughts on the 15 August 2022 suspension by NBA-NECommittee: “The Suspension Of NBA General Secretary By The National Executive Committee: Corollary Legal Issues” by Sylvester Udemezue (published on 15 August 2022 by TheNigeriaLawyer, BarristerNG, DNLLEGALANDSTYLE, Newswirelawandevents, Lawandsocietymagazine, etc). Meanwhile, before anyone tells me that I cannot make public comments on this matter because it’s pending in court, as in subjudice, I refer you to an article titled,
“Limits of Trial Publicity and Right to Free Speech: A Diagnostic Appraisal of Influence of the (Social) Media on Judicial Proceedings” by Sylvester C. Udemezue. (2021) Vol 3 No. 1 Nile University Law Journal. 145. (you can find it online at https://www.sciencegate.app/document/10.2139/ssrn.3802807)
Finally, for the avoidance of doubts, may I state unequivocally that my opinion in the instant case of Joyce Oduah v. NBA is without prejudice to whatever might be the final decision/position of the Court of Law on the matter. I
am bound by decisions of our courts for whom I have tremendous respect. As Sir Oliver Wendell Holmes Jnr said in his book, The Path Of The Law, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law“ (see http://www.constitution.org/lrev/owh/path_law.htm). Thank you for reading me. Your comments, queries and ripostes are welcome, to continue this discussion in the interest of the law Profession and of rule of law.
Yours faithfully,
Sylvester Udemezue (Udems)
08109024556.
mrudems@yahoo.com.
(22 August 2022)
