Ikeja Branch Elections, NBA NEC Resolutions And The Concept Of Non-Retroactivity: A Detached Delineation Of Section 6(3) Of The Uniform Bye-Law.

By Sylvester Udemezue

Introduction

Section 6(3) of the Nigerian Bar Association Uniform Bye-Law for Branches, contained in Part 1 of the Third Schedule to the Nigerian Bar Association Constitution 2015 (as amended), provides as follows:

“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.”  (see: Unini C., “DOWNLOAD: The New NBA Constitution Now Available Amendments To Be Adapted To Branch Bye Laws” (TheNigeriaLawyerSeptember 7, 2019) <https://thenigerialawyer.com/download-the-new-nba-constitution-now-available-amendments-to-be-adapted-to-branch-bye-laws/> accessed September 21, 2020).

I have read a Letter written to the NBA, Ikeja Branch of the NBA by the General Secretary of the NBA (Mrs. Joyce Oduah), and published under the headline, “Branch Elections: NBA restates retrospective Application of Uniform Bye Law Provision prohibiting perpetual NBA election Contestants.”  Reacting to an earlier the letter from the current Caretaker Committee of the Ikeja branch, which had requested clarification on the provisions of Section 6(3) of the Nigerian Bar Association Uniform Bye-Law for Branches, and the letter notifying the NBA National body of the decision of the members of the NBA Ikeja Branch Caretaker Committee, in respect of the forthcoming Ikeja Branch Election, the NBA National, in a the letter signed by the NBA General Secretary, stated as follows, as reported by thenigerialawyer.com

“NBA national noted that at the Nigerian Bar Association National Executive Committee (“NBA NEC”) Meeting held in Jos on 17th February 2016, it was unanimously resolved that the provisions of Article 6(3) of the Uniform Bye-Laws for Branches should apply retrospectively. Similarly, at the NBA NEC Meeting held in Benin on 16th June 2016, it was re-affirmed that the provisions of the said Article 6 (3) should have a retroactive effect. The practical and legal implication of the above decision of the NBA NEC is that any member of our Association who has held elective offices as a Branch officer for two (2) terms is not eligible to contest for a Branch office until at least five (5) years after his/her last term of office, whether or not the person held offices for 2 terms prior to the coming into force of the NBA Constitution in 2015… As a corollary to the above, the NBA NEC resolutions on the provisions of Article 6 (3) remains the position of the NBA till date and it is binding on all the NBA Branches, until the same is reversed by a subsequent NEC resolution. In the circumstance, please be guided accordingly by the above resolution in clearing the candidates for the Branch election in order not to act in any manner that contravenes the decision of the NBA NEC. For avoidance of doubt, only aspirants/candidates who meet the requirement of the said Article 6(3) should be cleared.” (“Branch Elections: NBA Restates Retrospective Application of Uniform Bye Law Provision Prohibiting Perpetual NBA Election Contestants”

The letter appears to have has generated a lot of controversy. A major argument around the decision of the NBA national, as contained in the letter aforesaid, revolves around whether or not it is possible to give a law a retroactive application, as the NBA NEC, and by extension, the NBA has done in this instance. While I do not think this is the major issue for determination in this matter, permit me to make a brief general remark on non-retroactivity of statutes/laws. There is no doubt that the general rule on non-retroactivity of legislations comes with loads of exceptions, especially where common justice or national interest requires such. The following statement is extracted form an article I wrote in 2010, during the tenure elongation controversy involving five Nigerian State Governors, which matter later proceeded to the Supreme Court where the position we had held was affirmed by Nigeria`s apex court:

“Generally, it is forbidden that a law should have a retroactive or retrospective application, as this is seen as a violation of the rule of law, which regulates free and republic society; hence most common law jurisdictions (of which Nigeria is one) do not permit retroactive criminal legislation (see for example Article 2, paragraph 7 of the African Charter on Human and Peoples’ Rights (Ratification & Enforcement) Act, LFN, 2004; Article 11, paragraph 2 of the Universal Declaration of Human Rights; European Convention on Human Rights (ECHR). However, this is not without exceptions; a law may have a retrospective effect without being technically adjudged ex post facto. Besides, when a law repeals a previous law or a part of it, the repealed legislation would no longer apply to the situations it once did, even if such situations arose before the law was repealed; the new legislation (or amendments) would apply. In the United Kingdom, ex post facto laws are technically possible under the doctrine of parliamentary supremacy (see for e.g., the Pakistan Act, 1990 (UK); the War Crimes Act 1991; the Drug Trafficking Act 1994; the Banking Act 2009, etc). The 28 January 2010 edition of the UK Daily Telegraph reported of how Mr. Justice Kenneth Parker, a judge of a High Court in London, had on 21 January 2010 ruled that a retrospective application of the UK Finance Act 2008 as it relates to demands was “in the relevant circumstances proportionate” and did not breach human rights. Also, law may be given a backward-looking effect where common justice or national interest requires it. As the great Lord Denning MR once said, “the law should be used more in the spirit of the legislation than the letter, when making a judgement that re-interpreted certain clauses, thus retrospectively altering the law.”  (See: Udemezue S.C, “TENURE EXTENSION: GOVERNORS CANNOT EAT THEIR CAKE & HAVE IT” (Nigerian VoiceSeptember 26, 2010) <https://www.thenigerianvoice.com/news/35262/tenure-extension-governors-cannot-eat-their-cake-have-it.html> accessed September 21, 2020)

To the above may be added the case of Lemon v. Kurtzman, 411 U.S. 192, 198–99 (1973) where the “the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old”

Having said this, may I now turn my attention to what I believe to be the real question for determination in the present scenario: What is the effect of the resolutions passed by NBA`s national Executive Committee (NBA NEC) in Jos, Plateau State on 17 February 2016, and reaffirmed in Benin on 16 June 2016, on the application and interpretations of  section 6(3) of the Uniform Bye-Law, as contained in Part 1 of the 3^rd Schedule to the NBA Constitution as approved/passed by the NBA Annual General Meeting (AGM)? In dealing with this issue, I would break my answer into three parts:

• Does the NBA NEC have powers to amend the NBA Constitution?
• The Jos-and-Benin Resolutions of the NBA NEC & proper interpretation to be given to the provisions of section 6(3) of the Uniform Bye Law; and
• Conclusion and recommendation.
• Does the NBA NEC Have Powers to Amend the NBA Constitution?

Section 5 of the Nigerian Bar Association Constitution 2015 (as amended): “The Supreme Authority of the Association shall be exercised by the General Meeting.”  Section 20 (1) and (2) of the Nigerian Bar Association Constitution 2015 (as amended) sets out the process and procedure for the amendment of the Constitution, as follows:

“(1) This Constitution shall not be amended except at an Annual General Meeting of the Association by a two-thirds (2/3) majority of those present and entitled to vote, provided that two-thirds (2/3) of the Branches of the Association are represented AND provided further that at least sixty (60) days’ notice of the proposed amendment shall have been given to the General Secretary who shall have circulated same to delegates at least thirty (30) days before the proposed amendment is tabled for discussion at the Annual General Meeting. 2. For the avoidance of doubt, two thirds majority of members present and voting shall be approximated to the nearest whole number. (2) For the avoidance of doubt, two thirds majority of members present and voting shall be approximated to the nearest whole number.” (emphasis mine)

From the above, it is obvious that it is only the NBA Annual General Meeting (NBA AGM) that possesses the power to amend, alter or replace any provisions of the NBA Constitution. Section 7(5) of the NBA Constitution, which contains the powers of the National Executive Committee of the NBA, provides:

“Subject to the provisions of the Legal Practitioners Act and other provisions of this Constitution, the National Executive Committee shall exercise and execute the following powers and functions: (a). Exercise control and management over the finances of the Association including the Appointment of suitable Banks for that purpose; (b). Exercise the powers of the Association with respect to the appointment of representatives to any Statutory, Executive/Judicial Commissions, or other bodies; (c). Express the views of the Association upon any matters of public interest or upon any matters of general interest to the Legal Profession. (d). Make all necessary arrangements for the Annual General Meeting through the Membership directorate of the National Secretariat of the Association; (e). Appoint an Executive Director and such other staff for the Association, under such terms and conditions as may be prescribed in their respective letters of appointments. The Executive Director shall be a person who has been called to the Nigeran Bar or who holds a University Degree in any of the Social Sciences and, in either case, also has a post-graduate degree or professional certificate and experience in any of the following study areas: finance, accounting, or business administration;(f). Cause the accounts of the Association to be audited annually by a professional firm of auditors, appointed by the Annual General Meeting; (g). Appoint one of their members or a suitable member of the Association to fill and/or perform the duties pertaining to a vacant national elected office, which said vacancy may occur due to mental or physical infirmity or any other cause; (h). Generally exercise all the powers vested in the Association (except those powers reserved for an Annual General Meeting or Extraordinary General Meetings of the Association) so as to promote and carry out the aims and objects of the Association as contained in this Constitution, and in particular, when the need arises, to apply for and receive donations on behalf of the Association.”

It is crystal clear that the NBA NEC lacks powers to exercise those powers reserved for the (Annual) General Meeting or Extraordinary General Meetings of the Association. The power to make, amend, alter or otherwise change the NBA Constitution falls among “those powers reserved for an Annual General Meeting or Extraordinary General Meetings of the Association.” See Section 20 of the Constitution (cited above).  But this is not this the end of the discussion?

• The Jos And Benin Resolutions of the NBA NEC & Proper Interpretation to Be Given to the Provisions of Section 6(3) of the Uniform Bye Law

The letter by the NBA GS states that “NBA NEC Meeting held in Jos on 17th February 2016, it was unanimously resolved that the provisions of Article 6(3) of the Uniform Bye-Laws for Branches should apply retrospectively. Similarly, at the NBA NEC Meeting held in Benin on 16th June 2016, it was re-affirmed that the provisions of the said Article 6 (3) should have a retroactive effect… the NBA NEC resolutions on the provisions of Article 6 (3) remains the position of the NBA till date and it is binding on all the NBA Branches, until the same is reversed by a subsequent NEC resolution. In the circumstance, please be guided accordingly by the above resolution in clearing the candidates for the Branch election in order not to act in any manner that contravenes the decision of the NBA NEC. For avoidance of doubt, only aspirants/candidates who meet the requirement of the said Article 6(3) should be cleared.” The letter or resolutions as published give the following wrong impression, which led to the controversy currently raging:

• That section 6(3) of the Uniform Bye-Law should have a retroactive application;
• That the it was the Jos-and-Benin resolutions of the NEC that conferred the retroactive status on the said section 6(3) of the Uniform Bye-Law;
• That the Jos-and-Benin NEC resolutions are “binding on all the NBA Branches, until the same is reversed by a subsequent NEC resolution”  – this gives the erroneous impressions that the NBA NEC reserves the powers to give any interpretations as it wishes, to the said section 6(3) of the Uniform Bye-Law;
• That any Branch who fails to be “guided accordingly by the above resolution in clearing the candidates for the Branch election” is acting in a “manner that contravenes the decision of the NBA NEC.”

With due respect to the NBA NEC, the NBA General Secretary & to the NBA National Leadership, all the above assumptions, which are all reasonable implications drawn from the General Secretary’s (GS`s) letter aforesaid, are wrong, and capable of giving a wrong impression that the NBA NEC possesses powers to give to a provision of the NBA Constitution a meaning that is not there. My respectful opinion is contained in my analysis of the letter, as shown below:

• Does section 6(3) of the Uniform Bye-Law have a retroactive application?

What some think is retroactivity in relation to the interpretation of that section, is to me, a proper, non-retroactive application of the law. The relevant portion of section 6(3) of the Nigerian Bar Association Uniform Bye-Law for Branches states that … 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.” The operative word in the above provision is “HAS HELD ELECTIVE OFFICE.” And this, I submit, refers to three categories of NBA members:

• A Branch Member who as at the date of coming into effect of the NBA Constitution “HAS HELD elective offices as a Branch officer for two (2) terms;”

• A Branch Member who as at the date of any Branch Election that holds after the coming into effect of the NBA Constitution “HAS HELD elective offices as a Branch officer for two (2) terms;” and

• A Branch Member who “HAS HELD” elective office as a Branch officer on one occasion as of the date of the coming into effect of the NBA Constitution, and also “HAS HELD” elective office as a Branch officer on one other occasion after the coming into of the Constitution, provided the period between the two is not beyond five (5) years.

I respectfully submit that this the only reasonable interpretation to be accorded that provision, based on the words used and interest of justice and fairness, applying the Literal Rule, the Mischief Rule and the Purposive Rule of Statutory Interpretation. Any attempt to exclude from the coverage of  that provision a Branch member who HAD, as of the date of coming into effect of the NBA Constitution, already/previously HELD such an elective office on two occasions, would work serious injustice on the plain words used in the Constitution, which clearly envisages/captures members who fall within Number (i) above. Besides, it appears clear from the use of the words “HAS HELD” that section 6(3) of the Bye-Law inherently has a somewhat backward-looking effect, which aim is to promote “common justice or national interest.” It would not make any since if those who HAD HELD such offices twice before the NBA Constitution are excused from the effect of section 6(3) while those who happen to hold such offices twice after the coming into effect of the constitution are included. Such a one-sided interpretation of that provision would promote partiality, unfairness and injustice; what is sauce for the goose is sauce for the gander. The purpose of that provision is to apply/ensure evenhandedness on such issues. Hence the relevance of the purposive interpretation. In this respect, may I refer also to my earlier comment on the place of the statutory text in statutory interpretation:

“…. The meaning of an enactment must be ascertained from its text, in light of its purpose and in its context.  The legislature must be taken in a statute to have said exactly what it means, and also to mean in a statute exactly what it has said therein. Although jurists may take the help of both the Rules or Canons of Interpretation as well as some Internal Aids and External Aids to the Rules in the interpretation of Statutes, it goes without saying that interpretation of a word or expression must depend on the text and the context. In People v. Jefferson, [1999) 21 Cal.4th 86, 94 [86 Cal.Rptr.2d 893, 980 P.2d 44] the California Court of Appeals, 4th District, USA, observed that the role of the courts “in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. According to the Court of Appeals of the US state of Indiana, “the first and often last step in interpreting a statute is to examine the language of the statute”[ See Ashley v. State, 757 N.E.2d 1037, 1039 , 1040 (2001)] As one writer puts it, “ statutory test should be both the ending point as well as the starting point for interpretation.[see https://www.everycrsreport.com/reports/97-589.html, accessed 22 December 2019].This is because, words are the skin of the language, while language is the medium of expressing the object that a particular provision or the Act seeks to achieve. In other words, to find the real intentions of the drafters of a statute, regard must be had to the context, subject-matter and object of the statutory provision in question. Courts and jurists achieve this by carefully analyzing the whole scope and provisions of the statute or section relating to the word or phrase under consideration.[See: Rao, S., “External Aids to Interpretation of Statutes: A Critical Appraisal,” published on ww.ssrn.com, accessed 22 December 2019].Though schools of statutory interpretation vary on what factors should be considered, all approaches to statutory interpretation start (if not necessarily end) with the language and structure of the statute itself. This is because the language and provisions of a statute are the most reliable indicator of the intent of the makers of the statute.[See: People v. Lawrence (2000) (US) 24 Cal.4th 219, 230 [99 Cal.Rptr.2d 570, 6 P.3d 228]; See also Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)]”

The Purposive and the Mischief Rules Further Explained

The purposive approach (sometimes referred to as “Purposivism,” “Purposive Construction,” “Purposive Interpretation,” or “The Modern Principle In Construction”) is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause in a constitution) within the context of the law’s purpose. Purposive interpretation is a derivation of mischief rule as set out in Heydon’s Case. According to this rule, while interpreting statutes, first the problem or mischief that the statute was designed to remedy should be identified and then a construction that suppresses the problem and advances the remedy should be adopted. Heydon’s Case illustrates the Mischief Rule of statutory Interpretation whose main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would “suppress the mischief, and advance the remedy”. Put differently, in applying the mischief rule, the court is always “to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act.” (see: “Mischief Rule” (Wikipedia June 10, 2020) <https://en.wikipedia.org/wiki/Mischief_rule> accessed September 21, 2020

• Does an NBA NEC Resolution have any power to confer on section 6(3) of the Uniform Bye-Law, a backward-looking effect, if that provision doesn’t already have any such effect?

The answer is a plain no. On a proper, purposive and even plain interpretation, based on the use of the word “HAS HELD,” section 6(3) of the Uniform Bye-Law already has in itself a backward-looking effect, as I have explained above. Section 6(3) of the Uniform Bye-Law does not require a resolution of the NBA NEC in order to take effect as a backward-looking provision of the NBA Constitution, because the NBA NEC has no powers whatsoever to amend, add to, remove from or otherwise modify any provisions of the NBA Constitution.

• That the Jos-and-Benin NEC resolutions are “binding on all the NBA Branches, until the same is reversed by a subsequent NEC resolution.”

With due respect, this is a wrong interpretation of the status of those NEC resolutions. In my humble opinion, based on the explanation I have volunteered above, a NEC resolution does not have any power to add to or otherwise to put into the NBA Constitution what is not originally there. The statement above, which appeared in the NBA GS letter to the Ikeja Branch, has given the wrong impressions that the NBA NEC reserves the powers to give any interpretations as it wishes, to the said section 6(3) of the Uniform Bye-Law, and to (perhaps at any later date) reverse such interpretation, and even replace it with an opposite interpretation (this is the impression given by the portion of the letter that says, “until the same is reversed by a subsequent NEC resolution”). I see the said NEC Resolutions only as mere opinions on what the NEC believes to be the actual interpretation of section 6(3) of the Uniform Bye-Law. Accordingly, I submit that for this purpose and in this particular instance, what is binding on the Branches are the provisions of section 6(3) of the Uniform Bye-Law, not the said NEC Resolutions. This is because those NEC resolutions would have been void and of no effect, if they or anyone of them had run contrary to the true effect of the provisions of that section; in cases of any conflict between a NEC resolution and a provision of the NBA Constitution, the latter must prevail to the extent of inconsistency. The Jos and Benin NEC Resolutions are a mere affirmation of the already existing backward-looking application/effect of that section; NEC has neither the power to add to nor to detract from, in view of sections 7(5)(h) and 20 of the of the NBA Constitution, which forbids the NEC from amending, modifying or replacing any provisions of the Constitution.

• That any Branch who fails to be “guided accordingly by the above resolution in clearing the candidates for the Branch election” is acting in a “manner that contravenes the decision of the NBA NEC.”

The proper thing to have said (by/in the GS`s letter) is that any Branch which fails to be“ guided by the said section 6(3) of the Uniform Bye-Law in clearing the candidates for the Branch election” is acting in a “manner that contravenes the provisions of the NBA Constitution and the Bye-Law.” Under such situations, it is the NBA Constitution (and not the NEC Resolution) that a Branch violates, when the Branch fails to adhere to the provisions of section 6(3) of the Uniform Bye-Law.

Other Statutory Provisions similar to section 6(3) of the Uniform Bye-Law

I give just one example, although such situations abound. Section 332 (d) of the Companies and Allied matters Act, 2020 provides:

“It shall be the duty of a director of a Company to take all reasonable steps to ensure that secretary of the company is a person who appears to have the requisite knowledge and experience to discharge the functions of a secretary of a company, and in case of a public company, he shall be – any person who HAS HELD the office of the secretary of a public company for at least three years of the five years immediately preceding his appointment in a public company.”

A closer look at this provision of Companies and Allied Matters Act (CAMA), 2020 (which is a reproduction of section 295(d) of CAMA, 1990, CAP C20, LFN, 2004) shows that is it closely resembles section 6(3) of NBA`s Uniform Bye-Law. The use of the words “HAS HELD” in section 332(d) of CAMA, 2020 envisages that two categories of persons are captured by that provision:

• any person who HAD HELD the office of the secretary of a public company for at least three years of the five years immediately preceding August 07, 2020, assuming the date of “his appointment in a public company” was August 07, 2020. (Recall that the CAMA 2020 was signed into law on August 07, 2020). This means that section 332(d) takes care of those who had held such office before the date of coming into effect of CAMA, 2020. Does this mean that section 332(d) of CAMA, 2020 has a retrospective effect? No, in my opinion. Merely being backward-looking does not render a provision of a statute retroactive.
• any person who HAS HELD the office of the secretary of a public company for at least three years of the five years immediately preceding his appointment in a public company—even if the date of the proposed appointment comes any time after August 07, 2020.

Conclusion & Recommendation

Applying the Literal, Purposive and the Mischief Rule of Interpretation, and relying on the statutory language, section 6(3) of the NBA Uniform Bye-Law reasonably covers three categories of NBA Members, namely –

• A Branch Member who as at the date of coming into effect of the NBA Constitution “HAS HELD elective offices as a Branch officer for two (2) terms;”

• A Branch Member who as at the date of any Branch Election that holds after the coming into effect of the NBA Constitution “HAS HELD elective offices as a Branch officer for two (2) terms;” and
• A Branch Member who “HAS HELD” elective office as a Branch officer on one occasion as of the date of the coming into effect of the NBA Constitution, and also “HAS HELD” elective office as a Branch officer on one other occasion after the coming into of the Constitution, provided the period between the two is not beyond five (5) years.

This interpretation, which I see as reasonable, does not render the application or implication of that section retroactive, but is a direct effect of the wording of the section itself. As I have pointed out above, the words themselves best declare the intention of the law-giver, and must therefore be adhered to unless Law-maker`s intention would be circumvented rather than applied. I do not see how the intention of the makers of the NBA Constitution would be circumvented by the above interpretation of that section. On the contrary, such all-encompassing interpretation captures the true intention of the makers of the NBA Constitution which is to avoid a situation where some members of the NBA could become perennial Branch elective office-holders, and doing nothing else. It was meant to stamp out the phenomenon of those usually seen as “career NBA politicians,” or of those who (to use the words of respected Chief Adeniyi Akintola) “practice the Bar,” instead of practicing law. “Bar Practioners.” “NBA Practitioners.” “Legal Practitioners.” Lol (Udems, Off the Mic; It`s okay).  In a letter to Justice William Johnson of the United States, Sir Thomas Jefferson, a founding father and 3rd President of the United States of America, had this to say: “on every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” It is therefore my humble recommendation to all members of NBA, Ikeja Branch, to please get guided by section 6(3) of the Uniform Bye-Law, to allow peace reign in the Tiger Branch, in the best interest of Branch members. In my opinion, in view of my discussions above, the current hullabaloo over the proper interpretation to be given to section 6(3) of the Uniform Bye-Law is akin to what William Shakespeare once described as Much Ado About Nothing! Members of the Ikeja Branch, remember you are tigers.  Sherrilyn Kenyon said, “the tiger lies low not from fear, but for aim.” God is in the tiger as in the lamb; hence He has advised us in the Holy Book: most honorable and noble is he who avoids strife. Proverbs 17:1 puts it more succinctly: “Better is a dry morsel, and quietness therewith, than a house full of strife.”

Long live Ikeja Branch! (the Tiger Branch).

Long live the NBA!

Respectfully,
Sylvester Udemezue (udems)
19 September 2020
(udemsyl@hotmail.com , 08021365545)