Is Article 6(3) Of The Nigerian Bar Association By-Law Which Prohibits Certain Members From Contesting For Elective Offices As Branch Officers Retrospective? By P.C.Okorie

By P.C.Okorie

INTRODUCTION

Article 6(3) of the Nigerian Bar Association Bye-Law 2015 prohibits any member of a Branch from occupying the same office for more than two (2) years (one term). It also disqualifies any member who has held  an elective office as a Branch officer[1] for two (2) terms from contesting for a branch office until at least five (5) years after his/her last term of office.[2]

This provision has generated some controversy with regards to whether or not it should have retrospective effect. In other words, whether or not  members who have held elective offices as Branch officers under the previous Bye-Laws, are eligible to contest for a branch office under the current Bye-Law? This is in view of the commencement date of the Bye-Law which is  August,27, 2015[3] and the fact that the Bye-Law is silent on the issue of its retroactivity.

This short commentary contends that in the absence of any express or implied provision to the contrary in the Bye Law, it will be unjust to construe Article 6(3) as having a retrospective effect.

MEANING OF RETROSPECTIVE LAW

A retrospective or retroactive law is one which makes present rights and duties depend on past events[4] or which extends its scope or effect to matters that have occurred in the past.[5] This kind of law whether in criminal or civil matters is generally disapproved for its unfairness because it disappoints a justified expectation.[6] The rule of law as a constitutional principle requires that a citizen before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.[7]

RETROACTIVITY UNDER NIGERIAN LAW

The concept of retroactive legislation is one which not only enjoys recognition under Nigerian Constitution but is also rich in local jurisprudence. Though the  two provisions of the Constitution[8] dealing with retrospective legislation relate to criminal offences, the  courts have nonetheless not favored any construction which allows the retrospective application of statutes in civil matters except where such intention is clearly expressed or can be implied from the provisions of the statute.

It is therefore safe to say that under Nigerian law, there exists a presumption against retroactivity of any enactment in civil matters especially one that  attaches prejudicial consequences to prior events or which takes away or impairs any vested rights acquired under existing laws or which creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations  already passed.[9]

The following pronouncements illustrate the direction of the Nigerian Courts.

In Afolabi v Governor of Oyo State[10] the Supreme Court relying on the 1892 English case of Lauri Renad[11], held that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication.

In Shell Petroleum Development Company of Nigeria Limited v Chief Joel Anaro & Others[12] Kekere-Ekun JSC, put it more lucidly as follows:

There is a general presumption against retrospective legislation. It is presumed that the Legislature does not intend injustice or absurdity. Courts therefore lean against giving certain statutes retrospective operation. Generally, statutes are construed as operating only in cases or on facts, which come into existence after the statutes were passed unless a retrospective effect is clearly intended.  

It is important to emphasize that where there is ambiguity as to whether an enactment is retrospective or prospective, it can only be construed as having prospective effect only.

This principle was restated by the Supreme Court per Wali, JSC,  in Kotoye v Saraki[13] when His Lordship held that “where the enactment is expressed in a language that is fairly capable of either interpretation, it ought to be construed as prospective only.”

EFFECT OF RETROACTIVITY OF ARTICLE 6(3)

The injustice of retrospective application of a statute with regard to Article 6(3) of the Bye-Law, can be illustrated by a scenario where a Branch member who has been working towards becoming Chairman of the Branch and had  consequently held two lesser elective offices in the past (when there was no restriction) with a view to taking advantage of that experience, is now suddenly prevented by Article 6(3) from  fulfilling this legitimate ambition on the basis of his past actions for  which he  had received no prior warning of those consequences.

There is no doubt that such application of any law will be cruel. It is perhaps this kind of cruelty  that retrospective application of Article 6(3) could expose a Branch member to, that influenced William Blakstone  to write as follows:

“Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilty by a subsequent law: he had therefore no cause  to abstain from it; and all punishment for not abstaining must  of consequence be cruel and unjust. All laws should be therefore made to commence in future, and be notified before their commencement.”

CONCLUSION

Article 6(3) does  not contain any express or implied provision indicating its intention to operate retrospectively. The only reasonable presumption therefore is that the provision has no retroactive effect. This is  in line with well established principles. To interpret the provision otherwise will simply be cruel.

*Honourable Commissioner, Nigerian Law Reform Commission. Email pcokorie@yahoo.com

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