Chief Gani Fawehinmi V. Nigerian Bar Association & Ors (No.2) (1989)

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AGBAJE, J.S.C Lead Judgment

The plaintiff, Chief Gani Fawehinmi, commenced this action against the Nigerian Bar Association and the General Council of the Bar as Defendants by an originating summons. In it the plaintiff claimed the following reliefs:

“(1) A DECLARATION that the decision of the Nigerian Bar Association taken at its National Executive Meeting in Jos in April, 1984 and ratified at an Emergency General Meeting on the 5th May, 1984 in Lagos that its members must not appear before the Special Military Tribunals established under Decree No.3 of 1984, Recovery of Public Property (Special Military Tribunals) Decree 1984 is unconstitutional, illegal, null and void and of no effect whatsoever.

(2) A DECLARATION that the decision of the Nigerian Bar Association taken at the meeting of its National Executive Committee held in Lagos on the 2nd and 3rd November, 1984 on the issue of members (of the Nigerian Bar Association) appearing before the Special Military Tribunal particularly that decision on the plaintiff is unconstitutional, illegal, null and void and of no effect whatsoever.”

In the affidavit in support of the action he referred to and exhibited the constitution of the 1st Defendant. The originating summons was dated the 19th day of November, 1984. The case was called in court on 19th March, 1985 after some interlocutory proceedings which have nothing to do with this appeal. The appearances for the parties on that day were recorded as follows:

“Chief Williams, S.A.N., with Messrs. E. A. Molajo, S.A.N., Kehinde Sofola, S.A.N. and Chief B. O. Benson, S.A.N., Segun Onakoya and S. A. Adewolu for 1st Defendant.”

On that day Chief Williams acting for the 1st Defendant requested that the matter be continued as if it were commenced by a writ of summons and urged the court to order pleadings.

It will appear that following an objection to the propriety of the action as commenced by the plaintiff by an originating summons the trial court ruled that the action as commenced was proper. In that ruling it was ordered that pleadings be filed in the case within such a period of time to be agreed upon by the parties with the court’s concurrence. This ruling was on 16th April, 1985. Thereafter the plaintiff filed his Statement of Claim on the 22nd day of April, 1985.

Later by a Motion on Notice dated 29th April, 1985 the plaintiff moved the court for the following relief:

“An order of interlocutory injunction restraining Chief F. R. A. Williams, S.A.N.; Mr. Kehinde Sofola, S.A.N. and Mr. E. A. Molajo, S.A.N., from acting or from continuing to act or from representing or from continuing to represent the Nigerian Bar Association, the 1st Defendant in this suit on the ground that their appearance or representation for the Nigerian Bar Association is improper, unprofessional, dishonourable and dishonest.”

In support of the application, the plaintiff swore a 26 paragraph affidavit. In view of the conclusion I have reached in this appeal I do not think it will be necessary for me to reproduce the contents of the affidavit in this case. What the affidavit is all about will be gathered in my judgment in this appeal.

Later by a Notice of Preliminary Objection dated 10th May, 1985 the first person sought to be restrained in the application of the plaintiff of 29th April, 1985, Chief F. R. A. Williams, S.A.N. took a preliminary objection to the application. The Notice of Preliminary Objection is as follows:

“NOTICE OF PRELIMINARY OBJECTION TAKE NOTICE that at the hearing of the Motion on Notice dated 29th April, 1985 the 1st person named in the said Motion on Notice, namely, Chief F. R. A. Williams will rely on the following preliminary objection, that is to say, that the said Motion on Notice should be dismissed on the ground that the evidence in support of the prayers in the said Motion on Notice and the said Motion constitute a deliberate abuse of the process of the Court.

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