By Giftson Ochuoba, Esq
At the meeting of the Young Lawyers’ forum held on the 23rd Day of April, 2018 presided over by the Chairman, YLF Calabar, Enome J. Amatey Esq, a five-man Electoral Committee headed by Uduak Essien (Wills) was setup and duly ratified by the Forum; consequent upon which election guidelines were duly published to kick start the electoral process. The Electoral committee was so constituted by the congress of the Young Lawyers.
There are rumors making the rounds that Daniel Kip will be disqualified by the Electoral Committee. The perceived threat to disqualify him is premised on the misconceived and inapplicable ground that he has occupied two elective positions consecutively. This Rejoinder is targeted at addressing that ground in order to clear the air.
The grundnorm of the Nigerian Bar Association, amended and adopted at the Annual General Conference of the NBA held in Abuja on 27th August, 2015 is divided into 10 Ten parts, that is the Constitution of the NBA and additional (9) Schedules.
The Constitution which provides for the entire administration, regulation, and composition of the Body consists of 23 Sections.
- The First Schedule contains the Standing Orders of the Association for the purpose effective conduct of proceedings at Annual General Meeting, Conferences, etc.
- The Second Schedule regulates the establishment, appointment and duties of the Electoral Committee for purpose of the NBA national Elections.
- The Third Schedule, Part I, contains the Uniformed Byelaws for the Branches of the Nigerian Bar Association, and in Part II, the Uniformed Bye-laws for Sessions, Institutes, and Fora of the Nigerian Bar Association.(Underlined for emphasis)
- The Fourth Schedule creates the Editorial Board of the NBA and empowers them to publish Journals.
- The Fifth Schedule contains the Oath of Office of Officers of the NBA.
- The Sixth Schedule contains the List of Sections.
- The Seventh Schedule contains the List of Institutes.
- The Eight Schedule contains the List of Fora.
- The Ninth Schedule contains the List of specialized Law and International Affiliated Law Forum.
APPRAISAL OF THE CONSTITUTIONAL PROVISIONS ON CONSECUTIVE TERMS:
Section 8 subsection 4 of the Constitution provides thus:
“(4) Disqualification from Holding any NATIONAL OFFICE
A member shall not be qualified to hold any NATIONAL OFFICE in the Association if during election campaigns:
(a) There is evidence that he/she is sponsored by or has received any financial assistance or inducement from any government of the Federation, or members, organisations or bodies corporate;
(b) He/She sponsors or is associated with sponsoring a Newspaper or Magazine article or any electronic broadcast, vilifying other candidates or extolling a candidate’s virtues;
(c) Any member who has held an elective office as a NATIONAL OFFICER for two (2) terms shall not be eligible to contest for a NATIONAL OFFICE until at least ten (10) years after his/her last term of office.” (emphasis mine)
A clinical perusal of the above provision patently divulges that the said provision ONLY APPLIES to National Officers.
On the other hand, Section 13(15) of the Uniform Bye-Laws set out in Part I of the Third Schedule of this Constitution makes the said Bye Laws applicable to every Branch of the NBA. Article 6 of the said Uniformed Bye Laws is for ease of reference stated below. Emphasis will be placed on sub 3.
OFFICERS & MEMBERSHIP OF THE EXECUTIVE COMMITTEE
(1) THE OFFICERS OF THE BRANCH shall be elected every two (2) years at an election preceding or at the Annual General Meeting for the election year;
(2) The OFFICERS OF THE BRANCH shall be as follows:
(d) Assistant Secretary
(f) Financial Secretary
(g) Social Secretary
(h) Publicity Secretary (i) Welfare Secretary (j) Legal Adviser
(3) No member of the Branch shall occupy the same office for more than two (2) years (one term); and any member who has held elective offices as a BRANCH OFFICER for two (2) terms shall not be eligible to contest for a BRANCH OFFICE until at least five (5) years after his/her last term of office.” (emphasis mine)
Against the backdrop of the foregoing provision, it is unarguable that officers of the Forum are not Branch Officers. The Officers of the Forum are provided for in Article VIII of the Bye Laws for Fora, Sessions and Institutes while the Officers of the Branch are provided in Article 6 of the Uniformed Bye Laws for branches. Therefore Article 6 (3) which specifically relates to Branch Officers cannot by any stretch of interpretation be imported to apply to officers of the Young Lawyers Forum.
ON WHETHER THERE IS A LACUNA IN THE BYE LAWS OF THE FORUM ON ELIGIBILTY:
It is my position that there is no lacuna in the Bye Laws regulating the Forum on eligibility of officers of the Forum to vie for elective positions. Article II of the said Bye Laws for Institutes, Sessions and Fora cocoons the Forum to its Bye Laws and nothing more. Any recourse to the Bye Laws for Branches or any provision regulating National Officers is ultra vires our Bye Laws, especially where there is no provision in the Bye Laws subjecting it to any other Bye Law or which states that recourse should be had to any other provision in the Constitution in the absence of a specific provision. See Article II below.
“Article II of the Bye Laws
Article II – Application
The Bye law shall be applicable to all NBA established Sections, Institutes and Fora as may be listed in the Schedules from time to time. Each Section, Institute or Forum set out in the First, Second and Third Schedules, shall adopt the provisions in their respective Bye-Law, provided that any other specialised law group or International co-operating law Forum affiliated with the NBA as set out in the Forth Schedule from time to time, may adopt the provisions of the Bye-law. (underlining mine for emphasis)
Now, it is important to state that there are just 3 provisions in the Bye Laws of the Forum that prescribes eligibility to vie for offices in the Forum, and may I reproduce them hereunder.
Article VIII – Officers
The Officers of each Section, Institute or Forum shall be the Chair, Vice-Chair, Secretary and Treasurer. Additional Officers may be approved by the Council as may be necessary. Only members in good standing in the Section, Institute and Forum shall be eligible to hold an office.
Article IX – Tenure
- An officer shall hold Office for a term of two years and he or she shall not be eligible for re-election to the same office.
- Any Officer filling in a vacancy of a retired, resigned or removed Officer for a period of less than 12 months shall be eligible for election for a further full tenure of the same office. No member shall be nominated for an election to or serve concurrently in more than one office and as an elected or co-opted non-officer of the Council.
Article XIII – Nominations, Elections and Vacancies in Respect of Officers and Council, and Co-Option of Additional Council Members
(vi) No person who is not a member of the Section, Institute, or Forum (delete as appropriate) shall be eligible to be proposed for election as a Section, Institute or Forum (delete as appropriate) Officer or as an elected member of the Council.
From the underlined provisions stipulated above, it is manifestly clear and conclusive that the Bye Laws for the Forum has provided the following requirements for eligibility to contest elections in the Forum, thus:
- THE ASPIRANT MUST BE A MEMBER IN GOOD STANDING WITH THE FORUM. (See Article VIII Article IX (c));
- THE ASPIRANT MUST NOT BE RUNNING FOR THE SAME OFFICE FOR A SECOND TERM(See Article IX (a));
- THE ASPIRANT MUST NOT BE HOLDING AN OFFICE IN THE FORUM AND INTENDS TO RUN FOR ANOTHER CONCURRENTLY.
The Latin maxim “expressio unius est exclusio alterius” is instructive here. The above express provisions excludes every other provisions on the same subject, and no importation can be made.
I must state emphatically that Daniel Kip complies on all fours with the eligibility standards set forth in the Bye Laws.
You may assume that Article XII also contains a requirement for eligibility for officers of the Forum, but such assumption can only emanate from a misconstruction of the said provision. To clarify this, you will agree that Article VIII of the Bye Laws for the Forum spells out the Officers of the Forum, which we have replicated in the branch in addition to other offices as the said provision empowers us to do.
Now, Article XII specifically deals with the National Governing Council of the NBA Young Lawyers Forum, which has no bearing or existence in the branches of the Forum. This has been the practice since the inception of the Forum. This explains why we have in the Governing Council, individuals who are just members but have no offices (See Article XII sub a (iii) & (iv)). For example, Deborah Okey who is representing the Calabar Branch of the YLF is simply a MEMBER of that Governing Council, while we have other members of the Council who are OFFICERS of the Forum, like the National Chairman, Alternate Chairman, Secretary, etc (See Article XII sub a (i)). The Past National Chairman and General Secretary of the Forum are also members of this Council (See Article XII sub a (ii)).
You will agree with me that there are no MEMBERS simpliciter at the Branch level of the Forum but only OFFICERS. See a reproduction of the Article referred to above, hereunder.
“Article XII–Section, Institute or Forum (delete as appropriate) Council,
There shall be a Section’s, Institute’s or Forum’s (delete as appropriate) Council which shall consist of:
- The Officers of the Section, Institute or Forum (delete as appropriate);
- The immediate past Chairman and Secretary of the Section, Institute or Forum (delete as appropriate);
- Not more than Five (5) nominated members and
- Not more than Three (3) co-opted members. “
Therefore, to conclude that the B part of Article XII (b) (ii) reproduced and underlined below, applies to officers of the Forum at the Branch level will be utterly erroneous as it is only applicable to the National level of the Forum. This distinction is also existent even at the National and Branch Levels of the Bar, as we have the composition of NEC and special provisions affecting National Officers different from those regulating Branch Officers.
- Terms of Office of the COUNCIL MEMBERS
Members of the Council shall hold office as such respectively for the following terms;
- An elected or Nominated MEMBER, holds office from the conclusion of the Biennial Conference of the Association at which he or she is elected/sworn in until the conclusion of the Second Biennial Conference of the Association next following the first mentioned Biennial Conference and he or she shall be eligible for re-election until the conclusion of the next Biennial Conference, Elected or Nominated members who have served for two years shall not be eligible for re-election;
Importantly, a biennial conference only happens at the national level, and the tenure of officers at the national level is governed by the provision that relates strictly where biennial conference is mentioned. This is the same position for national officers of NBA skipping ten years and branch officers of NBA skipping for five years, to re-contest any position to a national or branch office. So there is a distinction as well for National officers of the FORA as well as branch officers of the fora.
Persuasively, even the previous Bye Law regulating the Young Lawyers Forum before the advent of the NBA Constitution, 2015, proposed by the then National Governing Council members of the Young Lawyers’ Forum on the 1st of May 2011 and adopted by a resolution of the National Executive Committee (NEC) of the Nigerian Bar Association (NBA) at its meeting in Katsina on 27th of July 2011, never had any provision barring a member who has occupied two (2) consecutive elective positions from further vying.
The Electoral Committee, headed by Uduak Essien (Wills) when applying the law as it relates to the FORA, will find unequivocally that Daniel Kip is very qualified to contest the election, and show courage and commitment in conducting for us a free and fair election.
GIFTSON OCHUOBA, ESQ.