INTRODUCTION

The Nigerian Bar Association is the apex Association of lawyers in Nigeria and one of the largest Professional Associations in Africa. For this reason, elections into its National executive offices have remain serious business. While the year 2020 is another election year for the Association, the lessons of previous elections of the body continue to prove valuable for future reference. One of such lessons is in the recent decision of the High Court of the Federal Capital Territory, Per Honourable Justice A.O. Adeniyi, delivered on the 28th of January 2020 in Suit No. FCT/FT/CV/20/2016-Arthur Obi Okafor SAN v. Incorporated Trustees of the Nigerian Bar Association (NBA) & 36 Ors.

This write-up reviews the decision of the court, drawing on the valuable lessons it portends for the enrichment of our jurisprudence, and the future conduct of the Nigerian Bar.

FACTS

The Claimant, Arthur Obi Okafor SAN, contested for the office of President of the Nigerian Bar Association (NBA) at the National Officers’ Elections conducted in 20th August, 2018. The Chairman of the Electoral Committee (3rd Defendant) that conducted the elections declared Mr. Paul Usoro SAN (4th Defendant) as the winner of the election having polled a total of 4509 votes, while the Claimant was declared as runner-up with 4423 votes.

Being dissatisfied with the conduct and outcome of the elections the Claimant commenced an action, vide originating summons, against the NBA, the former NBA President, Mr Abubakar Mahmoud SAN, the Chairman of the Electoral Committee of the NBA (ECNBA), Prof. Auwalu Yadudu, Mr. Paul Usoro SAN and   33 Others on the ground that the ECNBA failed and omitted to conduct post-election audit and verification of votes as agreed by all stakeholders in pursuance of the NBA constitution and as announced in a Press Statement by the NBA President on 21st July 2018.

The Claimant sought the Court’s determination of the following issues, amongst others:

  1. Whether the 3rd Defendant (ECNBA) ought to have announced the purported result without verification of the votes cast and a post-election audit;
  2. Whether the ECNBA ought to have made the announcement of Paul Usoro SAN as winner and issued of certificate of return to him;
  3. Whether the court should order participatory and independent post-election audit and verification of votes;

Upon determination of the issues, the Claimant sought the following reliefs from the court:

  1. A declaration that there are three stages of the Election process, which includes verification, accreditation/voting and post-election audit and/or verification of votes;
  2. A declaration that the election remains inchoate and inconclusive until verification and post-election audit of votes is conducted;
  3. A declaration that failure of the ECNBA to conduct the all candidate’s participatory post-election audit and/or verification of votes rendered announcement of winner null, void and of no effect;
  4. An order of the court setting aside the announcement of results and issuance of certificate of return to Paul Usoro SAN;
  5. An order of the court directing the conduct of an independent participatory post-election audit and/or verification of votes;
  6. An order appointing either Waterhouse Coopers or Akintola Williams & Deloitte to audit the election process of the purported results;
  7. An injunction restraining Paul Usoro SAN from acting, or continuing to act as duly elected President of the Nigerian Bar Association unless and until the outcome of the verification of votes and the post-election audit.

Parties filed preliminary objections, affidavits and arguments which shall now be considered. However, it is noteworthy that before trial commenced, the Court enjoined and compelled parties to explore alternative dispute resolution and referred parties to the Abuja Multi Door Court, but, after an initial 60days and subsequent 45 days, parties failed to embrace reconciliation and the matter proceeded to hearing.

HEARING AND RULING ON PRELIMINARY OBJECTIONS

Preliminary Objections by the 4th Defendant (Paul Usoro SAN):

The 4th Defendant contended in its preliminary objection that the suit instituted by the Claimant is incompetent, defective, academic in nature and constitutes an abuse of court process, thereby robbing the Court of jurisdiction to entertain the same, for the following reasons:

  1. That the Claimant on 20th of August 2018 through the head of his election team, Mr. Olumuyiwa Olowokure, communicated his withdrawal from the election to the 3 rd Defendant; and therefore, lacked locus standi to institute the action;
  2. That the Claimant filed his Amended Originating Summons in the suit on 13th November 2018 without an accompanying affidavit as required by the Rules of Court;
  3. That Originating Summons is not the proper mode of commencing the instant suit in which the Claimant had alleged electoral fraud;
  4. That the suit is premature as the Claimant failed to explore the internal dispute resolution mechanism provided by the NBA before filing the suit.

Ruling of the court on Preliminary Objections by the 4th Defendant

Having heard arguments of parties on the preliminary objection, the court held as follows:

  1. That the facts the Court must consider in determining whether or not a party has locus standi to institute an action are those pleaded in the Statement of Claim (in the instant case — the Affidavit in support of the Amended Originating Summons) and nowhere in the document did the Claimant state that he had withdrawn his candidacy in the elections. According to the Court: ‘The position of the law is that a defendant who challenges in limine the locus standi of the claimant is deemed to accept as correct all the averments in the claimant’s statement of claim’ See Aiilowura Vs. Disu [2006] All FWLR (Pt. 333) @ 7638.
  2. That the 4th Defendant’s argument that the Amended Originating Summons was not accompanied by an Affidavit had been overtaken by events as the Claimant filed an Affidavit to support the Amended Originating Summons on 04/06 201 9, and the Defendant had joined issues with the Claimant by filing a Counter Affidavit thereto on 10/06/2019, thereby waiving his right to challenge the irregularity.
  3. On the argument that the Claimant cannot raise allegation of fraud by originating summons the Court held that nowhere did the Claimant categorically allege electoral fraud against any of the Defendants, as his case was only that the conduct of the elections did not comply with mandatory stages, to wit verification/ auditing of votes cast at the election.

The Court reasoned that were the Court comes to the conclusion that justice could be done to the parties on the basis of the facts presented before it in an action commenced by Originating Summons, it should not decline to hear the suit under that procedure, since, one of the attractions in commencing a suit by Originating Summons is that it makes for quicker and simpler adjudication. The Court cited with approval the case of Pam Vs. Mohammed [2008] 40 WRN 67 @ 747.

  1. On the argument that the action was premature for failing to explore the internal dispute resolution mechanism provided in Section 16 of the NBA Constitution, the court made some far-reaching pronouncement on the provision worthy of some elucidation:

Section 16 of the Constitution of the NBA provides:

“No aggrieved member shall resort to the court unless his/her complaint must have been considered and disposed of 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.”

The Claimant argued that there was no Dispute Resolution Committee of the NBA in place throughout the tenure of the NBA President. The Claimant also relied on the decision of the court in No. FCT/HC/CV/2364/76 — Joe-Kyari Gadzamat SAN, OF R Vs. Alhaji Abdullahi Ibrahim, SAN, CON & Ors, where similar objection was raised and was dismissed by the court because:

“…Constitution of the NBA, is not a statutory provision. As such, the pre-condition to access to Court in section 16 thereof cannot be viewed with the rigidity in which ouster provisions conferred in body of statutes or the Constitution are construed. Furthermore, the position is that Courts guard their jurisdictions jealously by strictly and cautiously scrutinizing the language of the ouster provision and resolving any ambiguity in favour of the Plaintiff whose access to the Court is being ousted or curtailed. See Inakoiu vs. Adeleke [2007] 4 NWLR (Pt. 7025) 423, Aiayi Vs, Military Administrator, Ondo State [19971 5 NWLR (Pt. 504) 237; N.E.C. vs. Nzeribe [19971 5 NWLR (Pt. 792) 458.

The Court upheld the argument of the Claimant and held on the objection of the 4th Defendant that:

  1. It could not have been contemplated by the framers of the NBA Constitution that the Dispute Resolution Committee can effectively deal with very sensitive and fundamental matters such as alleged violation of provisions of the Association’s Constitution regarding the conduct of elections, as it will be tantamount to asking an electoral body that conducted an election that is sought to be questioned, to now be the very body that will mediate disputes arising from the election.
  2. The Court quoted with approval the decision of the Supreme Court in Amadi Vs. N.N.P.C. [2000] 10 NWLR (Pt. 674) 76, and held that where an enactment regulates the right of access to the court in a manner to constitute an improper obstacle to access to court, such enactment could be appropriately regarded as an infringement of section 36(7) of the Constitution. See also Global Excellence Comm. Ltd. Vs. Duke [20071 16 NWLR (Pt. 7059) 22.
  3. The Court therefore held that “…section 16 of the NBA Constitution is an improper obstacle in the way of the Plaintiff in ventilating his grievances before this Court, as such this Court is bound to and hereby invokes its powers under the Constitution, vide section 6 (6) (b) thereof, in affirming the competence of the present suit and the jurisdiction of the Court to entertain the same”.

In the final analysis, the preliminary objections of the 4th Defendant were all dismissed.

Preliminary Objections by the 6th, 31st to 37th Defendants

The 6th Defendant, and the 31st to 37th Defendants all brought preliminary objections seeking the striking out of their names for the non-disclosure of cause of action against them, and after hearing, the court struck out the names of the 6th Defendant, and the 31st to 37th Defendants.

HEARING & DETERMINATION OF SUBSTANTIVE SUIT

For the substantive suit the Claimant’s sole issue for determination by the court was “”All the facts and circumstances of this suit considered, whether the 2078 NBA General Elections was not conducted in accordance with the enabling law and this suit is not therefore, unmeritorious?”

Argument of the Claimant

The Claimant argument before the Court is summarized as follows:

  1. That by a Press statement of the NBA, the NBA noted that the electoral process was disaggregated into three stages: a) pre-election process: process of compilation and verification/validation of list of voters; b) election: the deployment of the e-voting platform for NBA election, c) post-election: an audit of the electoral process;
  2. After the election, on the 20th of August, 2018, the Claimant wrote the NBA President calling for an election audit and received no response, and then he sent an email calling for a post-election audit to which the NBA President replied acknowledging that the request was legitimate;
  3. That Article 2.8 of the 2nd Schedule to the NBA Constitution provides that: “The results of the elections shall be announced within twenty-four (24) hours of conduct of elections upon collation and verification of the votes”. Hence, collation and verification of votes have been made integral part of the election process;
  4. That by the provisions of article 2.8, the 3rd Defendant (ECNBA) ought not to have announced the result before the audit and by doing so the election was rendered inchoate and inconclusive;
  5. That Article 2.8 uses the word ‘shall’ therefore compliance is mandatory and not discretionary;
  6. That the candidates at the election agreed to have a post-election audit which the NBA President re-enforced by his mail noting that the call for it was legitimate.

Argument of the 4th Defendant

The 4th Defendant’s argument before the Court is summarized as follows:

  1. That the ECNBA was charged by the NBA to conduct the elections in line with the NBA Constitution, and the ECNBA duly complied with the prescriptions in Articles 2.4 and 2.8 of the 2nd Schedule to the NBA Constitution with regards to the requirements to be followed at different stages of the elections;
  2. That the Claimant misunderstands the provision of Article 2.8 as post-election audit is not a requirement and is not mentioned in the provisions;
  3. That the Chairman of the ECNBA noted that the Committee carried out the election process in three stages, Pre-election, Election and Post-Election stage, and the Post-election stage included collation and verification of votes, announcement of the results within 24 (twenty-four) hours as provided by the NBA Constitution, and the Final Report of the Committee noted that it incorporated all the stages;
  4. That it was practically impossible for the ECNBA to have invited an independent audit firm to audit and still get the result of the election announced within twenty-four (24) hours as required by the NBA Constitution;
  5. That nowhere in the NBA Constitution is the word “audit” used; and that it was a misconception for the Claimant to have equated the meaning of “verification” with “audit”.

JUDGEMENT OF THE COURT

Having heard argument of Parties the Court held as follows:

  1. That the Press Statement where the NBA stated that there would be three stages of the elections, was not made pursuant to the provisions of Article 2.8 of the NBA Constitution.
  2. That under Article 2.8 of the 2nd Schedule there is no reference to “post-election audit.” As such, the Claimant cannot read into that Article what it did not provide for. The Court further noted that the post-election audit referred to in the NBA’s Press Statement and the ECNBA Final Report is a process expected to be undertaken after the conclusion of the entire election process. According to the Court:

“…audit of the electoral process contemplated by the stakeholders is not just an audit of votes cast at the election, but of the entire electoral process, which is a futuristic initiative put in place as a way to further “reinforce confidence in the electoral process, … I do not understand the provision of Article 2.8 of the 2nd Schedule to contemplate invitation of an external body to undertake the verification of the results”

  1. That to equate “verification of votes” with “post-election audit” is absurd as this will clearly defeat the purpose of the provision as the audit contemplated by the stakeholders is not such that would be undertaken within twenty-four (24) hours stipulated by Article 2.8 of the 2nd Schedule. That the position of the law is that a statute should not be given an interpretation that will defeat its purpose. See Olalomi Ind. Ltd. vs. N.I.D.B. Ltd. [2009] 76 NWLR (Pt. 7 767) 266.
  2. That on the issue as to whether or not actual verification of votes took place before the announcement of results, the Claimant had not deposed to any concrete evidence that the said verification of votes did not take place after collation.
  3. That the process of verification as required by Article 2.8 of the 2nd Schedule, is simply for the ECNBA to “confirm” that the collation of ballots undertaken is correctly reflected in the results announced and no more.
  4. On the email of the 2nd Defendant that the call for audit of votes by the Claimant was legitimate, the Court held that The Claimant seemed to have erroneously interpreted this statement as an endorsement of his call for audit of votes cast at the election whereas all that the 2nd Defendant stated was consistent with the agreement of stakeholders that an audit of the entire election process, which is expected to be a holistic assessment of the whole process from the beginning to the end, was imperative.
  5. That whatever agreement those who attended the meetings at which the measures enumerated in the Press Release had, it cannot possibly give rise to an enforceable legal right on the part of the Claimant in so far as those measures were not backed by specific provisions of the NBA Constitution.

In conclusion the court held that the Suit of the Claimant lacked in merit and in substance and it was dismissed.

CONCLUSION

In conclusion, the decision of the court in Suit No. FCT/FT/CV/20/2016-Arthur Obi Okafor SAN v. Incorporated Trustees of the Nigerian Bar Association (NBA) & 36 Ors. therefore, founds authority for the following propositions:

  1. That the provisions of Section 16 of the NBA Constitution do not restrict access to court which is guaranteed under the Constitution of Nigeria 1999 (As Amended);
  2. That Article 2.8 of the 2nd Schedule to the NBA Constitution does not mandate the conduct of post-election audit after the NBA Elections;
  3. That a statement issued by the NBA does not confer legal rights on members if such rights purported to be conferred is not borne out of the NBA Constitution.

While some points of the decision may seem arguable, it is clear that they were and remain the holding of the court in the case until contrarily decided.

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