Subsequent to the suspension of Hon. Justice Walter NKanu Samuel Onnoghen (GCON) as the Chief Justice of Nigeria and swearing in of Hon. Justice Ibrahim Tanko Muhammed as the Acting Chief Justice of Nigeria by President Muhammadu Buhari , the National Executive Committee of the Nigerian Bar Association NEC–NBA met and arrived at a resolution that all its members should proceed on two days court boycott between the 29th and 30th days of January 2019.
Whether the boycott was a complete success or not is not the issue here but to ask if the court boycott is the best option for the Nigerian Bar Association to press on its demands on any issue that affects the nation, particularly the recent one that was considered to be an affront on the Constitution of the Federal Republic of Nigeria.
Before proceeding further, it will not be out of place here to remind ourselves what happened some decades back when the same Muhammadu Buhari (then a Major General) came in as a Military Head of State precisely on 31st December 1983. As a military leader, he later promulgated a Decree No. 3 of 1984, known as Recovery of Public Property (Special Military Tribunals) to try public officers. On 27th April 1984, the NBA leadership in response issued a communiqué after voting ordering all its members not to appear before the Tribunal. Chief Gani Fawehinmi who was one of those that voted against the resolution was briefed by a client, Colonel Peter Kolawole Obasa, a former Director of the National Youth Service Corps (NYSC) who was charged for a criminal offence before the Tribunal in Lagos . Gani appeared to defend him and was thereafter sanctioned by the NBA.
The NBA having earlier threatened to enter the names of its erring members into a Roll of Dishonour later said in a release published in the Daily Time Newspaper of 7th November 1984 that:
“… Accordingly, the names of erring members whose appearance have been confirmed shall be entered into this Roll. With regard to the case of Gani Fawehinmi, a report received from the Lagos Branch of the Association was fully considered by the Executive which in turn condemned in a very strong terms the flagrant violation of the decision of the Association and the reckless manner in which he challenged the Association on Electronic. Accordingly the National Executive hereby directs that the name of Gani Fawehinmi should be entered in this Roll of Dishonour….”
Gani was immediately in court to challenge and file suit against the NBA’s decision entering his name in the Roll of Dishonour. With the intervention of first indigenous Chief Justice of Nigeria, Hon. Justice Adetokunbo Ademola, a meeting was held in his residence between Gani and some Bar elders including Chief B.O. Benson ,the counsel to the NBA, Chief F.R.A. Williams, Chief Kehinde Sofola and Mr. E. A. Molajo. At the meeting, the late great jurist said that the decision of the NBA to boycott the tribunal was “childish”. The trio of Williams, Sofola and Molajo said they were opposed to the boycott. At the end of the day, it was suggested that Gani should withdraw his suit before the court and Gani also urged them to appeal to the NBA to withdraw the boycott to allow for proper settlement which request was refused. The meeting ended in a deadlock. On the next court day (19th March 1985) before Hon. Justice Candid Ademola Johnson, the then Chief Judge of Lagos State High Court, Chief F.R.A. Williams, Chief Kehinde Sofola and Mr. E.A. Molajo, all Senior Advocates of Nigeria announced appearance for the Nigerian Bar Association (NBA) which was objected to by Chief Gani Fawehinmin and the real legal battle began.
Now back to the main issue. When the NBA announced its decision that all its members must proceed on court boycott, one of the questions I asked myself was that: was the court boycott the best option for NBA to press on its demand from government to reverse its action considered to be illegal? With the two days court boycott already come and gone, the government is yet to reverse its decision? The question now is that what has the NBA achieved by the boycott? If it is agreed that the court boycott is the best option to compel the government to reverse its decision, I can say without any fear of being contradicted that the boycott was poorly executed which was the reason why some lawyers complied while some did not. If we truly believe that the legal profession is mainly made up of the Bar and the Bench, then how can we have a successful boycott without having the Bench to be involved? I have heard people talking about what happened in Pakistan where the government was forced to reverse its decision on the removal of the Chief Justice of that country. The question I asked those people was that was it only the lawyers in that country that fought the battle?
I am still of the view that NBA was in haste in its decision to boycott the court in the last exercise. If I were the NBA President who at the same time the presiding officer of the NEC, the first thing I would have done was that having secured the mandate of the NEC to declare the court boycott, I would tarry a bit and first wrote powerful letter copying all members of the National Judicial Council (NJC) excluding the suspended CJN and the Acting CJN to inform them that the NBA had decided to engage in a court boycott. I would make them to realise that the said cold war was not about lawyers but about the protection of the judiciary as an institution and the respect for the Constitution of the Federal Republic of Nigeria. I would have urged the NJC members to summon an emergency meeting that would exclude the suspended CJN and the Acting CJN. If the NJC meeting was eventually called, the NBA President as members of the council would raise the issue at the meeting to ask for the co-operation of council members in this regards that the NBA wanted all judicial officers in the country to be involved in the court boycott. Although it may not be possible to have the concurrency of all NJC members in attendance to support the motion, but the NBA President would have suggested that voting should be resorted to determining the involvement of the judicial officers. I believe the majority would surely have carried the day.
What was obtained during the last court boycott exercise, to me was the product of the refusal of the NBA leadership to carry the necessary party along. Perhaps if NJC had been involved probably we would be saying different things today. It was this failure that made some monitoring team of the boycott to meet some resistance in the hands of some judges that sat in their courts during the boycott. For instance, Mr. Dele Oloke, the Chairman of NBA Ikeja branch when going about with his team to enforce the boycott in some of the courts met a great resistance from a particular judge who retorted that:
“I will not entertain any interruption. We know the rules of court; Mr. Oloke, be properly guided. The National Judicial Council (NJC) has not directed that judges should not sit; the Judiciary Staff Union of Nigeria has not shut the door. I am still in charge of this court, Mr. Oloke, what you are doing is contemptuous”
In this kind of boycott that divided lawyers, many people must have paid the big price. This brings us to the question that in this type of situation: who would have been at the receiving end? In the two days boycott, some matters might have been struck out for lack of diligent prosecution in the era when we are complaining of delay in our judicial system. What did you think of a court that already fixed a case for trial but the Claimant’s counsel was not in court because of the NBA directive on boycott but the Defendant’s counsel who was in court moved the court to strike out the case. Will it be proper to ask the client to pay another fee to relist the case in court? Assuming a lawyer got a bail for his client arraigned the previous day to the boycott but could not finish the perfection of the bail that same day, would the client (accused or defendant) not continue to remain in prison custody until the end of the boycott? What would have happened to those accused persons taken to the court by the Nigeria Police for arraignment when lawyers were on court boycott? While the judicial officers and the lawyers in the government employment may not be at the receiving end for the boycott of the court as they would surely get their salaries at the end of the month, same cannot be said about lawyers engaging in private practice who rely on what they are being paid by their clients.
The contention of some lawyers that refused to abide by the NBA directive was that their relationship with their clients is personal which NBA cannot interfere with as they have obligations to their clients. Some have argued that NBA has no legal justification to ask them to boycott the court. These were the kinds of arguments unanimously put forward by Chief F.RA. William, Chief Kehinde Sofola and Mr. E.A. Molajo all SANs when they met the Hon. Justice Adetokunbo Ademola in his residence when he intervened in the dispute between Chief Gani Fawehinmi and NBA. This is more the reasons why the NBA must devise other effective methods of registering its grievances against government policy considered to be inimical to the nation rather resorting to court boycott that may not have the desired impact.
The threat of sanction or imposing one on those erring members who failed to fall in line in such boycott will create more divisions in the Bar rather than uniting it .This is one of the lessons that must be learnt from the controversy between the late Chief Gani Fawehinmi and NBA. In issue such as this we must learn to sit on the round table rather than being on one another’s throats. In an article titled: JUDICIAL COUP AND THE PUBLIC INTEREST written some years back, I had observed that :
“…The involvement of the Nigerian Bar Association (NBA) in the general protest against the suspension of Justice Salami by the NJC and announcing the withdrawal of its members from the council must have annoyed Justice Katsina-Alu to engage the NBA in a battle of superiority. Against the tradition of swearing in the newly appointed Senior Advocates of Nigeria at the commencement of the Supreme Court’s new legal year which is usually in the September of every year, Justice Katsina-Alu decided to reschedule the swearing in to the month of August particularly to the very day the NBA was concluding its annual conference on the ground that since he as the CJN was retiring from the Supreme Court bench, he must be the one to administer oath on the newly appointed SANs but despite the call by Mr. J.B. Dauda, the President of the NBA to its members to boycott the ceremony, the Chief Justice went ahead to swear-in the new SANs .Would this not create a crack in the NBA? Was there anything wrong in leaving the administration of oath on the new SANs to the in-coming Chief Justice of Nigeria?
Now, imagine what would have happened if the NBA then decided to sanction those SANs or members that attended the swearing in ceremony for disregarding the NBA President’s directive in the midst of the NBA annual conference, what was in your opinion would have happened? This brings us back again to the Fawehinmi Vs. NBA suit at the trial court before Justice Candid Ademola Johnson, although the battle was fought up to the Supreme Court but Gani first won the legal battle at the trial court on the issues submitted. Part of what impresses me most in the ruling of the learned Chief Judge went as follows:
“I cannot end this ruling without placing on record the court’s appreciation of the assistance it has derived from the research and industry put into the preparation and presentation of the respective cases of the parties by the learned counsel in the matter. I must however sound a note of disappointment and regret about what I believe is the over-reaction of the plaintiff to the whole episode by the violence of his language particularly in describing the steps taken by the learned SANs as dishonest. I must say that the beauty of language particularly among the member of this honourable profession is the restraint exercised in its use .It is the tool of our profession and we must show leadership in the caution with which we blend and use it. I do hope the plaintiff would take note of this for the future”.
Are there any lessons from this for people particularly for lawyers in this age of social media? One is often felt disappointed by the way some of our colleagues express their view of various issues. Some write, say or share things that are devoid of reasoning, wisdom and research. We must all reflect on the above pronouncement of the great learned jurist and amend where necessary.
REMARKABLE PRONOUNCEMENT ON PUBLIC OFFICER PROTECTION ACT
“My understanding of the provision is that the Act gives parameter within which a public officer can take protection under the Act. As long as the public officer acts in the usual function of his office, whether it does it correctly or wrongfully, he is protected by the section .It is not open to court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applies or not .However ,as I have said ,where a public officer on a frolic of his own does any act which is not part of his normal duties or has nothing to do with his official functions, that is ,he acts outside the colour of his office ,he cannot claim protection under the Act.”
Per GALADIMA, JSC in Sulgrave Holding Inc. Vs. FGN (2012) 17 NWLR (Pt.1329) Pg.335 Paras E-F
THE SETTLED PRINCIPLE OF LAW
On legal personality of a company
“It is an established fact of law, that a company incorporated under our laws currently the Company and Allied Matters Act, is possessed of a legal personality. The company can act in most legal capacities as a human being. Therefore when the human agent of the company affixed their signatures for and on behalf of either of the parties to the contract, they did not act for each of themselves on either side. They acted for each of the companies for which each acted.”
See Kano State Oil And Allied Product Vs. Kofa Trading Co. Ltd (1996) 3 NWLR (Pt. 436) 244; (1996) 2 SCNJ 325; ADEOTI Vs. AYORINDE (2001) 6 NWLR (Pt. 709) Pg. 343 Paras F-G
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