Determination Of Post-Call Age And The Recent Decision In Stephen Nwankwo V. NBA

Oliver Omoredia writes for TheNigerialawyer

INTRODUCTION
Suit No. FHC/AI/CS/31/2017-Stephen U. Nwankwo Esq. V. Registered Trustees of the Nigerian Bar Association & 13 Ors decided by Honourable Justice Akintayo Aluko of the Federal High Court, Abakaliki division on the 14th of June 2018, is one of the recent cases which sought legal determination of the issue of post call age of a legal practitioner in Nigeria. Even though the suit could not be determined on its merit for the failure of certain strong requirements which have now become enshrined in legal procedure, the suit leaves valuable lessons and recommendations which may, in the near future, set the pace for administrative actions by the next generation of leaders of the Nigerian Bar Association.

Facts
The Plaintiff, a legal practitioner and member of the Nigerian Bar Association, Abakaliki Branch, brought an action by an originating summons dated 22nd May 2017 against the Registered Trustees of the Nigerian Bar Association (NBA), the NBA President, the Chief Registrar of the Supreme Court of Nigeria and 11 Others.

It was the case of the Plaintiff that he was a candidate for the post of secretary of the Abakaliki branch of the NBA in the May/June 2016 elections but was disqualified by the electoral committee on the ground that he underpaid his Bar Practicing Fee for the year 2014. The Plaintiff said he had interest in contesting for either the Chairmanship or Secretary position of the branch in the coming June 2018 elections. He noted that the Uniform Byelaws governing eligibility/ qualification for the election particularly for the positions of Chairman and Secretary of the branch which the Plaintiff had interest, stipulates that a chairmanship must be up to 10 years post-call and must have paid accurately his Bar practicing fees (BPF) and Annual Branch Dues not later than 31st March for three years preceding the election, while an aspirant for the position of secretary of the Association at the branch level must be up to 8 years post-call in addition to the above conditions. Presentation of evidence of these payments are a pre-condition for qualification i.e. for the year 2016, 2017 and 2018 respectively.

It was the Plaintiff’s case that by his calculation, as at 2016, he was above five (5) years but not up to ten (10) years post call, having been called to the Bar in May 2007. He therefore paid the sum of N10, 000 being the fees payable by legal practitioners in the category of five (5) years and above but not up to ten (10) years post-call. The Plaintiff was however left surprised when at the general meeting of the NBA Abakaliki Branch held on the 31st of March 2017, the executives expressed the view that the legal practitioner’s year of call shall be reckoned with and included in computing his age at the Bar. Hence a person such as the Plaintiff would as at 2016 be deemed to be 10 years post call and liable to pay the sum of N17,500, which makes his payment of N10,000 for the year 2016 falling short of the “accurate payment” required for eligibility to contest his interested office. The Plaintiff was also aggrieved that he had paid for stamp and seals in 2016 which where yet to be delivered to him by the NBA, yet the one presently in his custody had expired by the expiry date inserted thereon.

PLAINTIFF’S ARGUMENT
Flowing from the above, the Plaintiff feared that he was in real danger of being wrongly disqualified from contesting the election and this was gravamen of the suit before the Federal High Court wherein the Plaintiff sought for a determination of the following questions (summarized below):

1. Whether a legal practitioner’s year of call should be included in computing his age at the Bar by reason that he pays Bar Practicing fee for that year.
2. Whether a Legal practitioner who was called to the Bar in May 2007 for instance, can be said to have attained 10 years standing/post-call having regards to the provisions of section 18(1) of the interpretation Act which defines a “year’ as a period of 12 months.
3. Whether it is proper or permissible to have two different standards with respect to computation or calculation of age at the Bar.
4. Whether the insertion of an expiry date on Lawyers’ adhesive stamp/seal is justified, justifiable or lawful under the relevant existing Laws particularly rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007.

The Plaintiff therefore sought a declaration that for all intents and purposes, in computing a legal practitioner’s age at the Bar, his year of call be excluded therefrom and that the Plaintiff having been called to the bar in May 2007, the sum of N10,000 was the proper Bar Practicing Fee payable by the Plaintiff for the year 2016, being the fees payable for Lawyers 5 years and above but below 10 years post call. The Plaintiff sought a further declaration that the insertion of yearly expiry date on stamps/seals is unjustified and improper and an order of court restraining the NBA from inserting expiry dates in stamp/steals.

DEFENDANTS’ ARGUMENTS
The 1st , 2nd Defendants and the 3rd Defendant joined issues with the Plaintiff by filing their respective processes challenging the suit by preliminary objections.
The 1st and 2nd Defendants prayed the court to dismiss this suit claiming by the provision of Section 299 of the Companies and Allied Matter Act, LPN, 2004 otherwise known as the Rule in Foss v. Har bottle, the Plaintiff is bereft of the locus standi to bring this action. The 3rd Defendant however based its objection of the grounds that:

1. The Plaintiff’s claim referable to the 3rd Defendant does not disclose any locus standi on the part of the Plaintiff and a reasonable cause of action against the 3rd Defendant (i.e. the Chief Registrar of the Supreme Court) since it has neither business nor control of the decisions of the NBA.
2. The Court does not have jurisdiction over the internal affairs of a voluntary association such as the Nigerian Bar Association.
3. The Plaintiff has not exhausted the internal dispute resolution procedure and/or mechanisms as prescribed by the extant 2015 Constitution of the Nigerian Bar Association.
4. The subject matter of this suit cannot be accommodated by the provisions of Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
5. The originating summons in this suit fell short of the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act, 2004 and therefore are incompetent.

JUDGEMENT

The Court in dealing with the objections by the Defendants held as follows (judgement summarized):

On whether Section 299 of the Companies and Allied Matter Act, LPN, 2004 otherwise known as the Rule in Foss v. Harbottle, robs the Plaintiff of the locus standi to bring the action: The court held that while it agreed with the Defendant on the general rule in the case of Foss v. Harbottle, the rule is not without exception. According to the Court:

“there are exceptions to the rule in Foss vs. Harbottle. The Supreme Court in Elufioye’s case (1993) LPELIR – 120 held as follows: Once the civil rights and obligations of the Plaintiffs as individuals are affected, as I hold they are here, the courts in the exercise of their judicial powers set out above can look into such rights and obligations and for that purpose the Plaintiffs have locus standi before them. Such right guaranteed under the constitution cannot be in any way detrimentally affected by the common law rule in Foss v. Harbottle…

In the instant case, the Plaintiff has alleged that he personally and individually suffered as a result of what he perceived as improper or incorrect computation of his post-call age at the Bar which has affected his right to participate in the Association’s election and could lead to his disqualification… Secondly, he complained over the propriety of inserting expiry date on the NBA customized stamps/ seals, he stated in his affidavit that he paid for additional NBA stamps when his original stamps expired in March, but has not received same. He is of the view that if expiry date was not inserted on the stamps/ seals, he would still be using his original seals which long expired in March 2016 and would not have had to pay for additional ones which were not issued to him despite paying for them.

I do not therefore agree with the learned Counsel to the1st- 2^nd Defendants when he urged the court to dismiss this suit on ground that the Plaintiff has no locus standi to institute same. While I agree that it is only the 1^st Defendant that can rectify the act complained of by the Plaintiff, however having been personally affected and his right to participate or seek elective position as a member of the Association having been affected by the act complained of, the rule in Foss vs. Harbottle cannot be employed to deny him a right to complain or seek court’s intervention. The right of complaint or ventilation of grievance by any aggrieved member of the Association and right to have access to court is recognized and incorporated into Section 16 of the NBA extant Constitution.”

On whether there is any locus standi on the part of the Plaintiff and a reasonable cause of action against the 3^rd Defendant (i.e. the Chief Registrar of the Supreme Court) the court held that even though the Plaintiff paid Annual Bar Practising Fee to the 3^rd Defendant who retains 10% and remits 90% to the 1^st Defendant, failure of the Plaintiff’s to show by affidavit evidence how the 3^rd Defendant was liable in the suit was fatal to his cause as  “the reliefs and affidavit in support of originating summons, of the Plaintiff shows that no cause of action was disclosed against the 3^rd Defendant… The Plaintiff did not in his reliefs and affidavit disclose any of his rights, interest or obligations violated by the 3^rd  Defendant”

On whether the subject matter of this suit could be accommodated by the provisions of Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and properly brought to the Federal High Court, the Court held this in the negative. The only contention for which the Plaintiff argued that the suit could be brought before the Federal High Court was the fact that the 3^rd Defendant was an agency of the Federal Government and that Section 25 1 (1) (p) of the Constitution which deals with the administration, management and control of the Federal Government or any of its agencies and the 3^rd Defendant being a very high ranking officer of the Federal Government charged with the day to day administration of the office of the Chief Registrar of the Supreme Court, an agency of the federal government, make the subject matter in this to fall within the jurisdiction of the court.

In resolving this the court held:

“…it is not in all cases in which the Federal Government or any of its agencies is a party in a suit that this court must willy — nilly, without considering the Plaintiff’s claim, assume jurisdiction…(the)Plaintiff’s main claims revolve around the decisions, defies and responsibilities of the1st  -2^nd  Defendants who cannot by any stretch of imagination be classified as agencies of the Federal Government. Even if the office of 3^rd  Defendant, a staff of the Federal Judiciary, an arm of the Federal government qualifies as an agency of the Federal Government, having his name on the list of Defendants in this case without ore when no single complaint or claim is directed against him is not enough to clothe this court with jurisdiction.

The Apex Court in Wema Securities & Finance Plc vs. Nigeria Agricultural Insurance Corp (2015) LPELR 24830 (SC) specifically held that in considering the issue of jurisdiction of this court under Section 251 (l) of the Constitution both the status of the parties and the subject matter of claim have to be looked at.”

The Court also considered whether the registration of the NBA under part C of the Companies and Allied Matters Act vested the Federal High Court with requisite jurisdiction in the suit since matters related to the internal affairs of the NBA were under challenge. On this court the court relied on the decision of the Supreme Court in Godwin & Ors v. Okwey & Ors (2010) LPELR-1326 (SC) pages 11-12 and held that where the matters in issue are not matters touching and concerning the operation of the Companies and Allied Matters Act they are not within the jurisdiction of the Federal High Court under the section.

On whether the originating summons in this suit has fell short of the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act, 2004 and therefore are incompetent, the court relied on the case of Zakirai vs. Muhammed (2017) 17 NWLR (Pt -1594) 181; (2017) LPELR42349(SC) and held that:

“the decision in Owners of MV. Arabella’s case was based on the provisions of the old Rules of this court and that no leave is required to issue an originating process out of this court for service in another state because the jurisdiction of this court is nationwide”

On whether the suit was not premature for failure of the Plaintiff to exploit and exhaust the internal dispute resolution mechanism prescribed by Section 16 of the Constitution of the Nigeria Bar Association, the court relying on Adesola vs. Abidoye & Anor (1999) LPELR- 153(SC), held that:

“The section provides as follows: “No aggrieved member shall resort to the court unless his/her complaint must have been considered and disposed-off by the Dispute Resolution Committee; provided that such complaint of member shall be decided by the committee within sixty (60) days of receipt of the complaint”. There is nothing before the court to show that the Plaintiff complied with the above provision of their constitution. …Failure to exhaust the available internal means of resolving dispute by members of the Association will necessarily render the action premature and incompetent.”

IN CONCLUSION

In conclusion, the court held the suit as incompetent, holding also that it lacked jurisdiction to entertain same. The suit was accordingly struck out. The Learned judge however enjoined the NBA to look into the issues which led to the action and take appropriate steps to resolve them. According to his Lordship:

“I enjoin the leadership of the Nigerian Bar Association both at the national and state branch to wade into the matter, particularly on the computation of post-call age of members of the Association as it affect the Plaintiff with a view to resolving the issue revolving around his qualification to contest in the forthcoming Bar elections of his branch.”

Oliver Omoredia writes for TheNigerialawyer

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