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

LawGlobal-Hub Lead Judgment Report

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.

Particulars

1. The entire affidavit evidence in support of the Motion on Notice is inadmissible in view of the provisions of Section 25 of the Evidence Act and the common law rule including the admission of statement made in the course of negotiating for or exploring the possibility of the settlement of a dispute out of Court.
2. This Honorable Court had on a previous occasion ruled that the evidence of matters now sworn to in the affidavit mentioned in paragraph 1 hereof is inadmissible and the Court warned newspaper reporters not to publish so much of such matters as were divulged in court by the plaintiff herein.
3. Notwithstanding the ruling aforementioned, the plaintiff deliberately sent to the daily newspapers, copies of the Motion dated 29/4/85 together with the affidavit containing matters which the Court had warned newspapers not to publish and the said matters have been published in the Daily Times, the Punch and the Tribune of 30/4/84.
4. The motion cannot possibly have been filed in good faith for the purpose of obtaining any genuine relief but has been filed in all probability for the purpose of supplying to the press for publication, matters which the court had warned the newspapers not to publish and which matters are untrue.

AND FURTHER TAKE NOTICE that at the hearing of this application, the objectors will rely on the newspapers mentioned in paragraph 3 of the Grounds of Objection herein.”

On the same day, that is 10th May, 1985, the 1st Defendant by a motion on notice applied to the court for the following reliefs:

(a) striking out the name of the 1st Defendant on the ground that it is not a juristic person and so cannot be sued;

(b) striking out the entire action on the ground that even if all the facts pleaded in the Statement of Claim are admitted or established, the court will not grant any of the reliefs claimed in the absence of all proper parties to the action; and for such further and/or other orders as this Honorable Court may deem fit to make in the circumstances.

Further Particulars of Grounds for striking out the action

(i) The plaintiff has failed to join as co-plaintiffs those members of the Nigerian Bar Association who stand for the cause espoused by him and who agree with him in controversy to be resolved;

(ii) The plaintiff has failed to join as Defendants those members of the Nigerian Bar Association who stand for the cause espoused by him and who disagreed with him in the way in which they wish the matters in controversy to be resolved;

(iii) The plaintiff has failed to join as Defendants those members of the Nigerian Bar Association who oppose the cause espoused by him;

(iv) In the premises all persons who will or are likely to be affected by the judgment of the court are not before the court either in person or by representation.

Arguments were taken at the trial court on the two applications to it. On 19th July, 1985 the learned trial Judge, C. A. Johnson, C.J., delivered his ruling. The first part of his ruling was concerned with the application of the 1st Defendant to strike him out and to strike out the plaintiffs action on the ground that it was incompetent. Having considered the various arguments made to him in this regard he ruled as follows on the point whether or not the first Defendant is a juristic person and capable of suing and being sued:

“It is my considered view, having taken account of the implications of the different legislations recognising, imposing duties and granting privilege to the Association as a body, that it is meant to give the Association, even though unincorporated, a legal personality and I so hold. I therefore rule on that issue that the 1st Defendant is a juristic person and properly sued by the applicant as a Defendant in this suit.”

On the preliminary objection of Chief F. R. A. Williams to which I have referred earlier on in this judgment to the application of the plaintiff to the trial court to restrain the three Senior Advocates named in the application from appearing for the first Defendant, the learned trial Chief Judge held as follows:

Firstly “It has been argued, relying on the provision of Section 25 of the Evidence Law that the affidavit in support of the applicant’s application is inadmissible and consequently if this is accepted, there is no application before the Court. What does Section 25 provide

The Section reads:

“25. In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given; Provided that nothing in this section shall be taken to exempt any legal practitioner from giving evidence of any matter of which he may be compelled to give evidence under Section 169.”To start with there is nothing to show that it was ever agreed as an express condition that no evidence of what transpired at the reconciliatory meeting in Sir Adetokunbo Ademola’s house should not be given; but can we infer from the circumstances that the parties agreed together that such evidence should not be given That second leg, being a matter of inference, evidence of such agreement need not be in writing or express but could be by conduct. “The learned Chief Judge having examined the provisions of Sec. 25 of the Evidence Act and the circumstances under which the statements contained in the affidavit evidence of the plaintiff were made answered the question he posed for himself as to whether from the circumstances in question it can be inferred that the parties agreed together that such evidence should not be given as follows:

“That incident as relayed in the affidavit of the applicant and uncontroversial, clearly removed whatever inference one could have drawn that the parties to the peace meeting by conduct, expected all that was said at the meeting to be covered by the privilege of secrecy. On that basis I rule that the provision of section 25 of the evidence law is inapplicable to the situation here presented and hold that the affidavit of the plaintiff attached to his application is admissible in support of that application.”

So the learned trial Judge ruled that the affidavit evidence in support of the plaintiff’s application to restrain the three Senior Advocates of Nigeria from appearing for the 1st Defendant was admissible. On the motion itself to restrain the three Senior Advocates he ruled as follows:

“The said conciliatory meeting was held while proceedings were pending in court. Ostensibly to aid the administration of justice by securing a settlement among the litigants. In that role the learned Senior Advocates of Nigeria and elders in the profession, assumed the mantle of impartial conciliators and the duties of an officer in aid of justice. The mischief in their subsequent conduct lies in the fact that their eventual participation is likely to be construed as reflecting ab initio on the quality of their original intentions even if mistakenly as likely to taint their mediation. It is in this regard, in my considered view that the learned elders breached their duties to the administration of justice.” Then he proceeded to make the following order on the application:

“On the prevailing facts of the present situation and in exercise therefore of the court’s inherent jurisdiction and in spite of the misconceived basis upon which the applicant has founded his motion the court is able and thus therefore modify the order prayed for an interlocutory injunction to an order for an injunction simpliciter. The three learned Senior Advocates of Nigeria, Chief Williams, Mr. Kehinde Sofola and Mr. Molajo are therefore hereby restrained from further appearing for any of the parties in this case as at present constituted.” The 1st Defendant and each of the three Senior Advocates of Nigeria with which the ruling was concerned were dissatisfied with it and they, all of them, appealed to the Court of Appeal Lagos Division against it. That court coram Nnaemeka-Agu, J.C.A., as he then was, Kutigi, Kolawole, JJ.C.A, in its judgment dated 13th March, 1986 unanimously allowed the appeal of the 1st Defendant and the three Senior Advocates of Nigeria. It held as regards the 1st Defendant that it was not a juristic person capable of suing and being sued. The 1st Defendant was accordingly struck out of the entire action. The court held too that the order for injunction made against the three Senior Advocates of Nigeria, the 2nd, 3rd and 4th appellants in that appeal was wrong and the said order was discharged.

As regards the ruling of the learned trial Chief Judge on the admissibility of the affidavit evidence in support of the plaintiffs application to restrain the three Senior Advocates of Nigeria from appearing in the case the Court of Appeal ruled that the affidavit evidence was inadmissible. That court also ruled that the plaintiff by reason of his delay in taking objection to the appearance of the three Senior Advocates of Nigeria had waived his right to raise that objection.

The plaintiff is dissatisfied with the whole of the decision at the Court of Appeal and has now appealed against it to this court. All the parties to this appeal have filed briefs of arguments. In the course of the hearing of this appeal the plaintiff took an objection to the appearance of the 2nd to the 4th Respondents for themselves as parties to the appeal and also for the 1st Respondent. That objection was summarily dismissed at the hearing of this appeal. My learned brother, Obaseki, J.S.C, has now given his reasons for the dismissal of the objection. I entirely agree with them and I adopt them as my own.

I now go on with the consideration of the appeal itself. As I have just said briefs of arguments have been filed on both sides. A joint brief of arguments have been filed on behalf of the 1st to the 4th Respondents. It appears that all the parties are agreed as to the issues arising for determination in this appeal which the plaintiff/appellant has stated as follows:

“(1) WHETHER THE NIGERIAN BAR ASSOCIATION IS A JURISTIC PERSON CAPABLE OF SUING AND OF BEING SUED IN ITS NAME.

(2) WHETHER THE CHIEF JUDGE WAS UNJUSTIFIED IN BARRING CHIEF WILLIAMS, S.A.N., MR. MOLAJO, S.A.N. AND MR. SOFOLA,

S.A.N. FROM APPEARING FOR THE NIGERIAN BAR ASSOCIATION CONSEQUENT UPON WHAT THEY DID AND SAID AT THE MEETING OF THE 3RD OF MARCH, 1985 IN THE HOUSE OF SIR ADEMOLA.

(3) WHETHER THE AFFIDA VIT EVIDENCE SWORN TO ON THE 29TH OF APRIL, 1985 BY THE APPELLANT IS INADMISSIBLE.

(4) WHETHER THE APPELLANT WAIVED HIS RIGHT TO OBJECT TO THE APPEARANCE OF THE THREE SENIOR ADVOCATES. ”

I shall take the first issue first that is, whether the Nigerian Bar Association is a juristic person capable of suing and of being sued in its name. The submissions of the plaintiff on this point run as follows:

“THE NIGERIAN BAR ASSOCIATION IS A STATUTORY BODY AND IT IS THEREFORE A BODY CORPORATE. EVEN IF IT IS AN UNINCORPORATED BODY, WITH SEVERAL STATUTORY AND CONSTITUTIONAL RIGHTS, PRIVILEGES, POWERS CONFERRED AND DUTIES IMPOSED ON IT, THE NIGERIAN BAR ASSOCIATION is capable of being sued as a legal entity in its name otherwise.

There is no doubt that the Legal Practitioners Act, 1975, Section 1 empowers the Nigerian Bar Association to make its own constitution.

The Legal Practitioners Act, 1962, (Repealed) made similar provision. The Constitution of the Nigerian Bar Association is therefore a law – a subsidiary instrument – an enactment.”

The essence of the reply of the Respondents to this appeal to these submissions of the plaintiff’s that the 1st Respondent is not a juristic person capable of suing or being sued. It is conceded by them that the 1st Respondent is an entity by itself recognised by the law but they maintain that it does not have the capacity to sue or be sued eo nomine.

I think the point to start in the consideration of the matter raised in this issue is to state the general law as to who can sue and be sued. Halsbury’s Laws of England, Third Edition Volume 1 page 15 article 20 says as follows as to who can sue and be sued:

“The general rule of law is that any person, natural or artificial, may sue and be sued in the English Court.” Everybody knows who a natural person is. So I say no more about that. As to artificial person what is usually meant is a corporation, aggregate or sole.

As to the definition of a corporation aggregate Halsbury’s Laws of England, Volume 9, page 4, article 3, says as follows

“A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence.” And as to the definition of a Corporation sole, article 8 at page 7 of the same work says:

“A corporation sole is a body politic having perpetual succession, constituted in a single person, who, in right of some office or function, has a capacity to take, purchase, hold, and demise (and in some particular instances, under qualifications and restrictions introduced by statute, power to alienate) lands, tenements, and hereditaments, and now, it would seem, also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is, there may be, and often are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or no one in existence in whom the corporation resides and is visibly represented.”

Pertinent also to the point at issue in this appeal is the method of creation of corporations which is stated as follows at page 19 article 31 of the same work:

“At the present day a corporation is created by one or other of two methods, namely, by royal charter of incorporation from the Crown, or by the authority of Parliament, that is to say, by or by virtue of statute.”

The commonest instance of a corporation created by virtue of statute in this country is that of an incorporation of a company under the Companies Act, 1968.

There are of course, several statutes in this country creating corporations, such as statutes creating our Institutions of higher learning viz. University of Ibadan Act, 1962, and statutes establishing statutory bodies, e.g. Local Government Law of Oyo State, 1976.

It is the submission of the plaintiff that the 1st Respondent is a statutory body and is therefore a body corporate. The plaintiff has not directed us to any statute to which the 1st Defendant owes its creation. Nor has he directed us to any statute by virtue of which the 1st Respondent has been incorporated. For my part I cannot find such a statute. The conclusion I reach therefore is that the 1st Respondent is not a corporation. The 1st Respondent is evidently an association of individuals with its own constitution containing its aims and objectives.

I will now continue with my statement of the general law as to who can sue and be sued having come to the conclusion that the 1st Respondent is not a natural person or a corporation.

On the general law on the point at issue Mocatta, J., in Knight & Searle v. Dove (1964) 2 All E.L.R. 307 at 309 said:

“Counsel for the Defendants formulated a general proposition as to when in the English courts an action can be brought by or against a party other than a natural person, and gave illustrations of each part of the proposition, though he questioned the classification of some of the illustrations. The proposition was that no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly, or by the common law, either (a) a legal persona under the name by which it sues or is sued or (b) a right to sue or be sued by that name. As to (a), namely, legal personae, this may be divided into (i) corporation sole; (ii) corporations aggregate, incorporated by Royal Charter or special Act of Parliament or under the Companies Acts; (iii) bodies incorporated by foreign law; and (iv) “quasi-corporations” constituted by Act of Parliament, such as the War Damage Commission: see Inland Revenue Commissioners v. Bew Estate Ltd. As to (b), namely, parties which are not legal personae, but have a right to sue or be sued by a particular name, these may be subdivided into (i) partnerships; see R.S.C. Ord. 81; (ii) trade unions and friendly societies, both of which types have a membership; and (iii) foreign institutions authorised by their own law to sue and be sued, but not incorporated: see, for example, Chaff and Hay, Acquisition Committee v. Hemhill, a decision of the High Court of Australia, on appeal from New South Wales.” It is clear from what I have said earlier on in this judgment that the 1st Respondent is not a creation of statute. Again our attention has not been drawn by the plaintiff to any statute expressly conferring the right to sue or be sued eo nomine on the 1st Respondent. I have rejected above the submission of the plaintiff that the 1st Respondent is a corporation. What remains for me to consider now is the other limb of the submissions of the plaintiff namely that having regard to the several statutory and constitutional rights, privilege and powers conferred and duties imposed on the 1st Respondent, the Nigerian Bar Association, it is capable of being sued as a legal entity in its name. What I understand the plaintiff is saying in this submission of his is that having regard to the various legislations to which he has referred us the 1st Respondent has been given, impliedly by statute, capacity to sue or be sued eo nomine.

The various statutes upon which the plaintiff is relying for this submission that the 1st Respondent has been accorded impliedly by statute the capacity to sue and be sued eo nomine are:

(1) The Legal Practitioners Act, (1975), sections (1), (3), (7), (9), (11), (14), (22), and (23) thereof;

(2) The Legal Education (Consolidation etc) Act, 1976, as amended by the Legal Education (Consolidation etc.) Act, 1977, section 2(1) thereof;

(3) Sections 19 and 27 of the Interpretation Act, 1964; I should say here now that the plaintiff is relying on these two sections of the Interpretation Act, 1964,for his submission to us that the Constitution of the Nigerian Bar Association, the 1st Respondent, is a subsidiary instrument or an enactment.

(4) Item 48 of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria, 1979. This provision provides that the National Assembly can legislate for such professional occupations as can be designated by the National Assembly.

(5) Section 272 of the 1979 Constitution. The section contains provisions relating to the system of revenue allocation between the Federation and the States, among the States, between the States and Local Government Councils, and among the Local Government Councils in the States. I fail to see the relevance of Section 272 of the Constitution to the point I am now considering. So I shall say no more about it.

Before I proceed further I should deal with the submission of the plaintiff that the Constitution of the Nigerian Bar Association, the 1st Respondent, is a subsidiary instrument or an enactment having regard to the provisions of Section 1 sub-section 1 of the Legal Practitioners Act, 1975, which says:

“1 (1) There shall be a body to be known as the General Council of the Bar (hereafter in this Decree referred to as “the bar council”) which shall be charged with the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the constitution of the association) and with any functions conferred on the council by this Decree or that constitution.”

Section 1 of the Legal Practitioners Act, 1975 does not empower the Nigerian Bar Association to make its own constitution. It only recognises the constitution of the Nigerian Bar Association. In other words, Section 1 says that the management which the General Council of the Bar can exercise over the management of the affairs of the Nigerian Bar Association shall be subject to any limitations imposed by the constitution of the association in that regard. So the Act recognises Section 6 of the Constitution of the Nigerian Bar Association which says as follows:

“GENERAL COUNCIL OF THE BAR

The powers of the General Council of the Bar over the general management of the affairs of the Nigerian Bar Association as provided under the Legal Practitioners Act shall not include:

(i) Any control over the budget or finances of the association;

(ii) The power to appoint representatives of the Association to any Statutory or other Body;

(iii) The power to issue public statements expressing or purporting to express the views of the Association upon a matter of public interest, or upon a matter affecting the interest of the legal profession generally; or

(iv) The power to make arrangements (including the drawing up of an Agenda or presenting the place of meeting) for the Annual General Conference or any other general meeting of the Association.

(v) Any decision of the General Council of the Bar made in pursuance of its powers over the general management of the affairs of the Association may be revoked or modified by the Annual General Conference or at any other general meeting of the Association.”

The plaintiff has not directed us to any other statutory provision pursuant to which it may be said that the constitution of the 1st Respondent has been formulated.

For my part, I cannot find such a provision.

In the circumstances I reject the submission of the plaintiff to the effect that the constitution of the 1st Respondent is a subsidiary instrument or an enactment.

This also disposes of the arguments in this regard based as it were on sections 19 and 27 of the Interpretation Act 1964.

The plaintiff has on the general law as to who can sue and be sued directed us to what Kayode Eso, J.C.A., as he then was, said in the Solicitor General of Western Nigeria v. Adedoyin and Ors. (1973) 3 U. I. L. R. 143 at 149:

“What is more important, however, is that the courts have for a long time, and more so in modern times, promoted a number of institutions to sue and be sued in their own names even though such institutions are unincorporated by any statute. One would easily agree with Lord Denning, M.R., in Willis & Anor. v. Association of Universities of the British Commonwealth, when he said:

“We have reached the point foreseen by Professor Dicey long ago: ‘When a body of twenty, or two thousand or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted, a passage which was acclaimed by Professor Maitland in his Sidgwick Lecture (Collected Papers III, p. 306). This fact has now been recognised by law.”

Lord Denning in that case was dealing with the legal status of a council.” I do not understand Kayode Eso, J.C.A. as he then was, by saying in Solicitor General of Western Region v. Adedoyin and Ors. (supra) namely: “What is more important, however is that the courts have for a long time and more so in modern times, promoted a number of institutions to sue and be sued in their own names

even though such institutions are unincorporated by any statutes” meant that the courts had done this without paying due regard to the settled principles of law on the point as to who could sue or be sued as laid down in such cases as Knight & Searle v. Dove (supra). In fact, Kayode Eso, J.C.A., as he then was, stated these principles in Solicitor-General of Western Region v. Adedoyin.

The passage from the decision of Lord Denning, M.R. in Willis & Anor. v. Association of the Universities of the British Commonwealth (1964) 2 All E.L.R. 39 to which Kayode Eso, J .A., as he then was, referred can only be an authority for the proposition that the 1st Respondent, an unincorporated body is an entity by itself distinct from the persons constituting the Association and that the law will recognise such an entity. This is what Section 18(1) of the Interpretation Act, 1964, does when it says that “person” includes anybody or persons corporate or unincorporate.

Willis v. Association of Universities of British Commonwealth was concerned with an application for a new lease under the Landlord and Tenant Act, 1954, of England. The status of a body, Universities Central Council on Admissions, created by a committee of Vice Chancellors in England in 1961 was then being considered. It was in respect of this body that Lord Denning, M.R., made the statement quoted by Kayode Eso, J.C.A., as he then was.

The con in which the statement of Lord Denning, M.R., occurred was as follows:

“What then, is the legal status of the council It is not, of course, a body corporate. But may it not be a body unincorporated The Landlord and Tenant Act, 1954, like the Interpretation Act, 1889, recognises that a body unincorporated may have a juridical personality. We have reached the point foreseen by Professor DICEY long ago:

“When a body of twenty, or two thousand, or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted” A passage which was acclaimed by Professor MAITLAND in his SIDGLECTURE (Collected Papers III, p. 306). This fact has now been recognised by the law. A trade union (which is a body unincorporated) is a separate entity; see Bonsor v. Musicians’ Union (1). I think that it would be right to recognise that this council is a separate entity. Accepting that the council is a separate entity, it seems to me that each of these bodies, the council and the landlords, carries on an activity at No. 29, Tavistock Square. The council carries on there the activity of a central organisation for admissions. The landlords carry on there the activity of providing accommodation, equipment and staff for all the detailed administration of the scheme. This activity of the landlords is, I think, an “activity” within s. 23(2) of the Act of 1954. Each of them, the council and the landlords, occupies the lower floors of No. 29, Tavistock Square for the purpose of its activity. Each of them wishes to occupy the top floor for its purpose. It is, I think, quite possible for two bodies to share accommodation in this way. As I said in Hills (Patents) Ltd. v. University College Hospital Board of Governors (2):

“Possession in law is, of course, single and exclusive; but occupation may be shared with others or had on behalf of others.”

I think that the landlords can truly say that they intend to “occupy” the top floor, for they intend to occupy it by staff employed by them; and they can truly say that it is for the purposes of “a business to be carried on by them therein”, for it is to be carried on for their activity of providing the detailed administration of the scheme for admissions. Thus far the Landlords have the requisite intention to satisfy s. 30(1)(g) of the Landlord and Tenant Act, 1954.”

The case was definitely not concerned with the capacity of the body in question to sue or be sued eo nomine. It was concerned with whether or not it can be regarded as a legal entity for the purposes of the application before the Master of the Rolls. On this point too I refer to the judgment of this court in Thomas v. Local Government Service Board (1965) 1 All N.L.R. 168 at page 170:

“The first ground on which the claim is resisted is that the Board is not a person capable of suing or being sued, and if this submission succeeds the action must fail in limner. In rejecting it the trial Judge relied largely on section 2 of the Interpretation Law, which provides that” ‘person’ includes any company or association or body of persons corporate or unincorporated”, but we do not consider that “a Law to make provision for the Construction of Laws and of the Terms and Provisions usually adopted therein” is designed of itself to confer the power to sue and be sued on every unincorporated association of persons. It has been pointed out that this definition reproduces that in section 19 of the English Interpretation Act,1889, which has never been held to have the effect suggested and was expressly said in Davey v. Shawcroft (1948) 1 All E.R. 827, not to make an unincorporated body of persons liable to criminal proceedings. In our view it is necessary in every case to look at the instrument by or under which the association is established.”

What can be said in my view having regard to the decision in Willis & Anor. v. University of British Commonwealth (supra) is that it is too late in the day to say now that the 1st Respondent has no existence at all known to the law apart from its members. But in my judgment that is not the same thing as saying that it is a legal persona which can sue and be sued eo nomine by virtue of the fact alone that it has an entity or existence known to the law and nothing else.

For his part Counsel for the 1st-4th Respondents, Chief F. R. A. Williams, has, on the point of the general law as to who can sue or be sued eo nomine drawn our attention to the American case of Forest, City MFG, et al. v. Garment Workers’ Union 233 Missouris Report 1935 a decision of St. Louis Court of Appeal, opinion filed January 4, 1938. There it was held as follows:

“1. Associations. In the absence of statutory authority, held that it is general rule that a voluntary unincorporated association does not have the legal capacity to sue or be sued in its common or associate name, for the reason that such an association is purely a creature of convention, organized and existing under the common law right of “contract only” and having no legal entity distinct from that of its members.

2. Corporations – Associations. Authority for investing a voluntary unincorporated association with the equivalent status of a corporation must be conferred by local statutes and not by federal laws if the association is to be regarded as a suable entity in this State.
3. Associations – Corporation. A corporation is a creature of the sovereign power which brings it into being with an entity separate and distinct from the individuals who compose it and endowed with the right of continuous succession during the period of its existence, while an association exists purely under the common law right of contract on the part of its members, has no legal entity distinct from that of its members, and (sic) not enjoy the power of perpetual or continuous succession.” The general principles stated in that case are not in my view different from the general principles of law I have earlier on stated in this judgment.

In deciding whether the voluntary association in the case in St. Louis Court of Appeal, U.S.A., could sue or be sued in its own name Bennick, C., observed as follows:

First: “But as we pointed out above, the fact is that not even the four local statutes pleaded by Respondent have the effect of constituting a voluntary unincorporated association a suable entity, nor were they obviously ever intended by the Legislature to achieve that purpose. It is inconceivable to think that one desiring to learn if a particular association has been constituted a suable entity should be put to the task of leafing meticulously through the pages of the statutes and subsequent session acts to see perchance if that association had somewhere and some time been accorded a privilege of any character not accorded to individuals or partnerships, and it is equally inconceivable to think that the Legislature, if it had ever desired to constitute a voluntary unincorporated association a suable entity, would have done so by the strained and indirect method contended for by Respondent, that is, by exempting it from the income tax laws, or by giving it the right to select a union label and determine where the same should be displayed, or by giving it the right to be represented by a member on the State Board of Mediation. No one knows better than the Legislature how to go about constituting such an association suable entity if it should ever desire to do so,” Second: “Of course we recognize the fact that even in the absence of express statutory provision the status of a suable entity may in certain instances be accorded a voluntary unincorporated association by necessary implication from other legislation which recognizes such association as a legal entity, at least with respect to the exercise of the particular power conferred upon it.”

I have stated earlier on in my judgment that authority to sue and be sued eo nomine may be accorded a voluntary unincorporated association by statute expressly or impliedly. In the case of express authority to sue or be sued eo nominee it can only be expected that the legislature if it desired to constitute a particular association a suable entity would have done so by saying so directly otherwise than by going about it in a round-about way. However when the question for determination is whether in the absence of express statutory provision, a particular unincorporated association has the status of a suable entity which can necessarily be inferred from a statute or a series of statutes, one must of necessity go through the task of leafing meticulously through the statutes in question in order to decide the point. I believe this is what Mocatta, J., had in mind when he said in Knight and Searle v. Dove (supra) at page 309:

“It was further common ground that no statute expressly conferred the right to sue or be sued eo nomine on any trustee savings bank or on the bank the fifth-named Defendant. If in this case there be such a right or obligation, it must, therefore, be derived by implication from the relevant statutes.” So in the case in hand where as I have said there is no statute expressly conferring the right to sue or be sued nominee on the 1st Respondent the question that presents itself is whether such a right or obligation can be derived by implication from statutes. In that case one cannot, in my judgment, in order to decide the point correctly, help but examine all the statutes which have to do with the 1st Respondent and to which the plaintiff has drawn our attention.

I have earlier on in this judgment made the point that the 1st Respondent is not a creature of statute. Having regard to this I must now advert to the following submission by counsel for the 1st to the 4th Respondents in their brief of arguments:

“The reasons why the learned Chief Judge came to the conclusion that the N.B.A. had legal capacity to sue or be sued are, in his own words (at p. 192 line 20 to 28) as follows:

“It is my considered view, having taken account of the implications of the different legislations recognising, imposing duties and granting privileges to the Association as a body, that it is meant to give the Association, even though unincorporated, a legal personality and I so hold. I therefore rule on that issue that the 1st Defendant is a juristic person and properly sued by the applicant as a Defendant in this suit.”

Thus, the learned Chief Judge rested his decision on what the relevant enactments did in relation to the N.B.A. and not on the fact that any of the said statutes created the N.B.A. It is submitted that NNAEMEKA-AGU, J.C.A., was correct in holding that the decision in Thomas v. Local Government Service Board does not support the conclusion of the learned Chief Judge quoted above. The two cases are distinguishable on the ground that whilst the Local Government Service Board is a body created by statute, the N.B.A. is not such a body.

3.6 Implying the Right to sue or be sued from Statute:

In every case in which the courts have held that the right to sue or be sued may be inferred from statute, great care was taken to look very closely at the relevant statutory provisions. See e.g. Taff Vale Railway Co. v. Amalgamated Society of Railway Servants (1901), A.C. 426; Amalgamated Society of Carpenters, Cabinet Makers & Joiners v. Braithwaite (1922), 2 A.C. 440; National Union of General and Municipal Workers v. Gillian (1946) K.B. 81; Bonsor v.Musicians’ Union (1954) Ch. 479 and (1956) A.C. 104; Willis v. Association of Universities of the British Commonwealth (1965) 1 Q.B. 140; Knight and Searle v. Dove (1964) 2 Q.B. 631; Thomas v. Local Government Service Board (1965) 1 All N.L.R. 168; Solicitor General W. Nigeria v. Adedoyin & Ors. (1973) 3 U. I. L. R. 143. In everyone of the foregoing cases, the body unincorporated which was held to possess (by implication) the capacity to sue or be sued was either directly established by statute or established pursuant to some enabling statutory provisions. Not one of the cases deal with a body like the N.B.A. which was not established by or pursuant to the provisions of any statute. “I can find nothing in all the cases referred to in the above submissions for the1st to the 4th Respondents remotely suggesting that the proposition that a party can be given impliedly by statutes either (a) a legal personal under the name by which he sues or is being sued or (b) a right to sue or be sued by that name, will only apply where such a party is a creature of statute. So I reject such a submission. The reasons for my rejection of the submission will be more apparent when later in this judgment I discuss each one of the cases referred to in the submission.

I am of the view that the approach of the learned Chief Judge to the point at issue is the correct approach and as I have said earlier on in this judgment that will be my approach to the point too. Even in the American case of Forest City MFG. Co. et al. v. Garment Workers’ Union (supra) to which Counsel for the 1st to 4th Respondents directed us and to which I have referred earlier on in this judgment, what was said there was that the status of a suable entity might in certain instances be accorded a voluntary unincorporated association by necessary implication from other legislation which recognises such an association as a legal entity in the absence of express legislation conferring such a status. The fact that the association spoken of is a voluntary association denotes that it is not a creation of statute.

The plaintiff in his submission that capacity to sue or be sued eo nomine has been conferred impliedly by statute on the 1st Respondent relies on the following decided cases:

(a) Thomas v. Local Government Service Board (1965) 1 All N.L.R. 168 at 170;

(b) William Kpebimoh v. The Board of Governors Western Ijaw Teachers Training College (1966) 1 N. M. L. R. 130;

(c) The Solicitor-General Western Nigeria v. Adedji Adedoyin CA W/83/69 of 30th August, 1971 reported in The University of Ife Law Report in (1973) 3 U.I.L.R. 143;

(d) Canadian Case of Bass v. Pharmaceutical Association of British Columbia 51 D.L.A. (2D) p. 552; and

(e) Australian Case of Clyne v. The New South Wales Bar Association (1960) 104 C.L.R. 186.

I have referred to the cases in which, according to counsel for the 1st to the 4th Respondents the courts had held that the right to sue and be sued may be inferred from statute. I have rejected the submission of counsel for the 1st to the 4th Respondents that the capacity to sue or be sued could only arise by implication when the body in question is directly established by statute or established pursuant to some enabling statutory provisions. There is, however, the other leg of the submission of counsel for the 1st to the 4th Respondents to the effect that in every case in which the courts had held that the right to sue or be sued might be inferred from statutes great care was taken to look very closely at the relevant statutory provisions. I agree to this submission and this is what I intend to do in the case in hand.

Before I embark on the examination of the relevant statutes in this case I think I should find out what assistance I can get from the various decided cases cited to us.

I do not think that the following two cases to which the plaintiff referred us to case, namely:

(i) The Canadian Case of Bass v. Pharmaceutical Association of British Columbia (supra) and

(ii) The Australian Case of Clyne v. The New South Wales Bar Association (supra) can be relied upon as authorities for coming to a decision in this case that the 1st Respondent has a capacity granted to it by statute implied to sue and eo nomine.

The decision in the former case depended on the statute relevant to the body in the question registered, they enjoy certain advantages in that case, that is, the parliamentary Act of Columibia, 1960.Obviously we are not concerned with that statute here and the plantiff has not cited to us any local stature comparable to that stature. In the latter case, that is, the Australian case, the body in question was in fact a voluntary incorporated association. I have held earlier on in this judgment that the 1st Respondent is not an incorporated association. So that case is not in point here.

I go now to the Trade Union cases in England referred to by counsel for the 1st to the 4th Respondents, starting with the case of Taff Vale Railway Co. v. Amalgamated Society of Railway Servants (supra). In that case it was held that a Trade Union registered under the Trade Union Act, 1871 and 1876 could sue or be sued in its registered name. Lord Macnagthen in his speech in the House of Lords in the case said as follows: At page 437 Parliament has legalized trade unions, whether registered or not; if at page 438 “The substantial question, therefore, as Farwell, J. put it, is this: Has the Legislature authorised the creation of numerous bodies of men capable of owning great wealth and of acting by agents with absolutely no responsibility for the wrongs they may do to other persons by the use of that wealth and the employment of those agents In my opinion, Parliament has done nothing of the kind. I cannot find anything in the Acts of 1871 and 1876, or either of them, from beginning to end, to warrant or suggest a notion.” …………..

Then, if trade unions are not above the law, the only remaining question, as it seems to me, is one of form. How are these bodies to be sued I have no doubt whatever that a trade union, whether registered or unregistered, may be sued in a representative action if the persons selected as Defendants be persons who, from their position, may be taken fairly to represent the body.” at pages 439-440

“May a registered trade union be sued in and by its registered name For my part, I cannot see any difficulty in the way of such a suit. It is quite true that a registered trade union is not a corporation, but it has a registered name and a registered office. The registered name is nothing more than a collective name for all the members. The registered office is the place where it carries on business. A partnership firm which is not a corporation, nor, I suppose, a legal entity, may now be sued in the firm’s name. And when I find that the Act of Parliament actually provides for a registered trade union being sued in certain cases for penalties by its registered name, as a trade union, and does not say that the cases specified are the only cases in which it may be so sued, I can see nothing contrary to principle, or contrary to the provisions of the Trade Union Acts, in holding that a trade union may be sued by its registered name.” The other Trade Union cases namely: Amalgamated Society of arpenters, Cabinet Makers & Joiners v. Braithwaite, National Union of General and Muicipal Workers v. Gillian, Bonsor v. Musicians Union (all of them supra) followed the decision in Taff Vale Railway Co. case and the principles laid down in that case.

It should be observed that the Trade Unions in question were not each of them a creature of statute. Nor were they, none of them, established pursuant to an Act of Parliament. They were only registered under the relevant Trade Union Act. In fact, in Bonsor v. Musicians’ Union (supra) it was held per Lord Keith of Avonholm:

“The legal characteristics of a registered trade union differentiate it from other voluntary associations and may entitle it to be called a legal entity, while at the same time remaining an unincorporated association of individuals.” The case of William Kpebimoh v. The Board of Governors Western Ijaw Teachers Training College (supra) was concerned with a body, i.e. the Board of Governors of Western Ijaw Teachers Training College created by statute, under Section 3 of the Education Law of the then Western Region of Nigeria, Cap.34, Laws of Western Region. The learned trial Judge who took the case in coming to the decision that the body could in the absence of express legislation to that effect sue and be sued eo nomine followed the decision in the Trade Union Cases U. K. which I have discussed above and the decision of this court in Thomas v. Local Government Service Board (supra) which again I have touched on earlier on in this judgment. I will say more about the latter case later on in this judgment. I have earlier on discussed the principle laid down in Willis v. Association of Universities of the British Commonwealth (supra). I have also too considered the decision in Solicitor-General Western Nigeria v. Adedoyin and Ors. (supra).

I should now try to extract some principles of approach or salient points from these various cases that may be of assistance to me in examining the relevant statutes applicable to the first Respondent in this case.

The points of major importance in the Taff Vale Railway case and the other trade union cases which I referred to above are as follows. In Taff Vale Railway case, which was applied in the other trade union cases, the House of Lords restored the judgment of Farwell, J. that an action in tort could be brought against a trade union in its registered name. It was there emphasised that the legislature, in giving a trade union the capacity to own property and the capacity to act by agents had without incorporating it given it two of the essential qualities of a corporation in respect of liability for tort. It was also emphasised that a registered trade union was not a corporation, it being only an association of individuals, but had to have a registered name and a registered office. The point was also emphasised that the legislature provided for a registered trade union being sued in certain cases for penalties by its registered name as a trade union. Willis v. Association of the British Commonwealth (supra) was not as I have shown concerned with capacity of unincorporated association to sue or be sued but was concerned with the juridical personality of such an association. So the decision in that case is not quite in point here.

In Knight & Searle v. Dove (supra) the principles laid down in the Taff Vale Railway case were borne in mind by Mocatta, J., in examining the facts and the relevant statutes relating to the bank in the case before him to see if by implication from the express words of the statute it was possible to sue the bank in its own name.

In the case of Thomas v. Local Government Service Board (supra), upon which both sides in this appeal rely heavily the question was whether a creation of statute could be sued eo nomine. The case of Knight & Searle v. Dove (supra) was referred to there and then it was pointed out that that case was not concerned with (1) the position of a body created by statute for the discharge of public functions or (2) the possibility of distinguishing between liability for tort, with which it was concerned, and liability to be sued for a declaration. As regards the latter claim reference was made to the case of Vine v. National Dock Labour Board (1957) A.C. 488 where a statutory board had been made a proper Defendant to a declaratory action even in the absence of express statutory provision for it to sue or be sued eo nomine.

In Thomas v. Local Government Service Board (supra) this court emphasised the point that having regard to the functions the Defendant there, the Local Government Service Board, a statutory body, had to perform it was liable to be sued for a declaration more especially so since the statutory provisions relating to the office of the plaintiff/appellant in the case were such that injustice might result if the Board could not be made a Defendant to any kind of proceedings.

In the case of Solicitor-General Western Nigeria v. Adedoyin (supra) it was emphasised that to determine the issue of legal persona in that case the relevant statutory and constitutional provisions had to be examined in order to discover the statutory and constitutional functions of a permanent secretary and then decide,having regard to those functions, whether a Permanent Secretary could sue or be sued in respect of matters arising from the functions. In effect, the decision in Thomas v. Local Government Service Board was applied in Solicitor-General Western Nigeria v. Adedoyin (supra).

In William Kpebimoh v. The Board of Governors Western Ijaw Teachers Training College (supra) the decisions in the English trade unions cases and that in Thomas v. Local Government Board were applied.

In the American case of Forest City MFG. Co. et al. v. Garment Workers’ Union (supra) the point was made that it was inconceivable to think that the legislature if it had ever desired to constitute a voluntary unincorporated association a suable entity would do so by the strained and indirect method contended for by the Respondent in the case, that is, by giving it the right to be represented by a member on the State Board of Mediation.

The decision in Knight & Searle v. Dove (supra) shows that the implication that an unincorporated body has been given by statute capacity to sue and be sued must arise from the express words of the statute.

I have mentioned the statutory provisions upon which the plaintiff relies. As regards section 1(1) of the Legal Practitioners Act, the plaintiff submits as follows:

“There is no doubt that the Legal Practitioners Act, 1975, Section 1 empowers the Nigerian Bar Association to make its own Constitution. The Legal Practitioners Act, 1962, (repealed) made similar provision.

The Constitution of the Nigerian Bar Association is therefore a law – a subsidiary Instrument – and enactment.” Section 1(1) of the Legal Practitioners Act does not as I have said earlier on in this judgment give the 1st Respondent Association the power to make its Constitution. Exh. F, the Constitution of the Association, was not made pursuant to a statutory instrument or an enactment. It is a private document. However the Act recognises its existence by making the general management which the General Council of the Bar is to exercise over the affairs of the 1st Respondent subject to any limitations for the time being provided for by the Constitution. Besides doing this the Act does not give any statutory status to the constitution. I do not see how in the circumstance I can by examining the provisions of Exh. F say the legislature has by implication given the capacity to sue or be sued eo nomine to the 1st Respondent.

It is clear from the provisions of all the statutes relied upon by the plaintiff that it can be said that the legislature has recognised the 1st Respondent as a legal entity distinct from its individual members. In fact the provisions of Section 18 of the Interpretation Act, 1964, which define “Person” as including any body or persons corporate or incorporate have the same effect. The decision in Willis and Anor. v. Association of Universities of the British Commonwealth points in the same direction. So as I have already said it may be too late in the day to say now that the 1st Respondent has no existence at all recognised by law apart from that of its members. That the recognition of the legal existence of the 1st Respondent by statute or by law will not per se be construed as giving it the capacity to sue or be sued eo nomine is evident from the passage from the judgment of this court in Thomas v. Local Government Service Board (supra) to which I have earlier on in this judgment referred.

The following passage from the judgment of Mocatta, J., in Knight & Searle v. Dove (supra) at page 315 suggests the same thing as regards even a body created by statute:

“The question which I have to decide, however, is whether as the result of the relevant statutes and the action taken pursuant to them in the setting-up of the bank, something has been created which is sufficiently recognizable in law to be suable in tort. I have not to decide whether a body or aggregate of natural persons has been incorporated.” So, apart from the recognition or creation of an unincorporated body as a legal entity by statute one has to look further into the relevant statutes in order to determine whether or not it has been given impliedly by legislature the capacity to sue or be sued eo nomine. And as was pointed in the American case of Forest City MFG. Co. et ai. v. Garment Workers’ Union (supra) the fact that legislature gave an unincorporated association the right to be represented by a member on a statutory board is no indication that legislature constituted such an association a suable entity. I will follow that decision. This means that I am not prepared to hold from the rights given by various statutory provisions to the 1st Respondent to appoint, nominate or elect some of its members to serve as members of various statutory bodies legislature has impliedly given the capacity to sue and be sued to the 1st Respondent. Such rights were conferred on the 1st Respondent by sections 1(2) & (3), 3, 9(2), 11(2), 14(1)(a)-(c) of the Legal Practitioners Act, 1975 and Section 2(1) of the Legal Education (Consolidation etc.) Act, 1976, as subsequently amended.

I now turn to Section 7 and Section 22 of the Legal Practitioners Act, 1975. The former by its sub-section 4(c) provides that the Chief Registrar of the Supreme Court shall pay yearly to the 1st Respondent a sum equal to nine tenths of the aggregate of the practising fees received by him. The latter provides for the duties of the Association as regards the money paid to it by the registrar. In a way, the statute provides for the association to own personalty i.e. money albeit on trust.

As regards the duties imposed on the 1st Respondent in relation to the money given it, the statute says nothing about sanction for breach of any of the duties, let alone the procedure for the enforcement of the sanction. So there is nothing in this case like the statutory provisions in Taff Vale Railway case for a registered trade union being sued in certain cases for penalties in its registered name.

The implication of the statutory provisions in Section 7 of the Act in question is that the 1st Respondent can own money, personally. There is nothing however, there to suggest that the Defendant can own land. This necessarily takes me to the provisions of section 13 of the constitution of the 1st Respondent which as I said above, has, so to say, received statutory recognition:

“The National Executive Committee is empowered to appoint Trustees and Committees to raise money and develop the property of the Association in the best interest of the Association.

The Trustees shall hold office for life or until resignation unless removed from office by a resolution of the National Executive Committee.

(a) The number of Trustees shall not be more than five or less than three, and all properties of the Association freehold or leasehold, and other interests in land acquired for the use and benefit of the Association shall be vested in them.

(b) The Trustees shall deal with the properties of the Association as directed in writing by the Executive Committee.

(c) The Trustees may apply for registration under the Land Perpetual Succession Act, Cap.98 of the Laws of Nigeria.”

Upon the registration of the Trustees designated in Section 13 of the Constitution of the 1st Respondent, Section 2(3) of the Land (Perpetual Succession) Act, Cap.98, Laws of the Federation of Nigeria provides:

“The trustees or trustee shall thereupon become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in such corporate name, and subject to the conditions and directions contained in the said certificate to hold and acquire, and by instruments under such seal to convey, assign and demise, any land or any interest therein now or hereafter belonging to, or held for the benefit of, such community, body or association of persons, in such and the like manner, and subject to such restrictions and provisions, as such trustees or trustee might, without such incorporation,hold or acquire, conveyor assign, or demise the same for the purposes of such community, body or association of persons.” So, in section 13 of its constitution, the association recognises it that it cannot own land.

In all the relevant statutes before us there are no express words that the 1st Respondent can own property. It is only by implication that I have come to the conclusion above that having regard to the provisions of Section 7(4)(c) of the Legal Practitioners Act, 1975, the 1st Respondent can own money personality. That however is in my judgment a far cry from saying that there is a statutory provision that the 1st Respondent can own property generally which is not the case as I have just shown.

There are equally no provisions in any of the statutes upon which the plaintiff is relying saying that the 1st Respondent can act by agent.

There is also no legislation providing for the registration of the 1st Respondent or that it must have a registered name. In fact the 1st Respondent is not an association registered pursuant to any legislation.

Because of what I have said above, I am satisfied that the principles laid down in Taff Vale Railway case and the other U.K. Trade Union cases will not apply to the 1st Respondent for one to hold on the strength of those cases that the legislature has impliedly given the capacity to sue and be sued eo nomine to it.

I now have to see whether having regard to the decision in Thomas v. Local Government Service Board (supra) I can hold that the 1st Respondent has the capacity to sue or be sued eo nomine. It will be recalled that in holding that the Local Government Service Board the Defendant in the case could be sued this court emphasised the functions that the Board was to perform under the statute creating it, one of those functions being the appointment of members of customary courts established under the Customary Court’s Law. The other point emphasised in the judgment was the likelihood of miscarriage of justice, if it were otherwise, to the plaintiff in the case having regard to the statutory provisions relating to the office of the president of a Grade A Customary Court he was holding.

Apart from the duties imposed upon the 1st Respondent by Section 22 of the Legal Practitioners Act, 1975, as regards the money given to it under Section 7(4)(c) of the same Act, I cannot see where again in any of the statutes relied upon by the plaintiff/appellant the legislature gives any function to the 1st Respondent like those of the statutory powers possessed by the statutory body in Thomas v. Local Government Service Board. In short, the 1st Respondent is not given by statute the functions or powers of appointing the servants or employees of any statutory body or for that matter the statutory power to appoint any servants or employees at all. It is equally evident from the various statutes before us on the point at issue that the 1st Respondent is not given by statute the power of disciplinary action over any legal practitioner including the plaintiff/appellant.

I do not think that the right given to the 1st Respondent by statute to appoint some of its members to serve as members of some statutory bodies is on a par with the functions of the statutory body in the case of Thomas v. Local Government Service Board, which functions impelled this court to hold that the Defendant there, an unincorporated body, was liable to be sued eo nomine for a declaration.

So guided by Thomas v. Local Government Service Board (supra) I cannot even reach the conclusion that the 1st Respondent can sue or be sued eo nomine having regard to the relevant statutes in this case.

It is even inconceivable to deduce from what I have just held that injustice might be occasioned the plaintiff as regards his grievances against the 1st Respondent.

For, as Lord Macnaghten pointed out in Taff Vale Railway case, an unincorporated association can always be sued in a representative action. In this regard Order 13 rule 14 of the Lagos State High Court (Civil Procedure) Rules provides thus:

“Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the Court or a Judge sue or be sued, or may be authorised by the Court or a Judge in Chambers to defend any such cause or matter, on behalf or for the benefit of all persons so interested.”

The 1st Respondent is not a trade union or for that matter a registered trade union. The 1st Respondent is not an association of persons carrying on business in partnership in the name of a firm for the provisions of Order 13 rule 35 of the High Court of Lagos (Civil Procedure) Rules to apply. The rule says:

“Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to a Judge in Chambers for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm to be furnished in such manner, and verified on oath or otherwise as the Judge may direct.”

Before I proceed further, I have to refer to the following passage from the lead judgment of Nnaemeka-Agu, J.C.A. (as he then was) in the lower court in this case:

“It is apposite in this respect to refer to what the Missouri Court of Appeal had to say in circumstances not dissimilar in the case of Forest City Manufacturing Co. & Ors. v. International Ladies’ Garment Workers’ Union 233 M.O. App. 935 where they said:

“It is inconceivable to think that one desiring to learn if a particular association has been constituted a suable entity should be put to the task of leafing meticulously through the pages of the statutes and subsequent session acts to see perchance if that association had somewhere and some time been accorded a privilege of any character not accorded to individuals or partnerships, and it is equally inconceivable to think that the Legislature, if it had ever desired to constitute a voluntary unincorporated association a suable entity, would have done so by the strained and indirect method contended for by Respondent, that is, by exempting it from the income tax laws, or by giving it the right to select a union label and determine where the same should be displayed, or by giving it the right to be represented by a member of the State Board of Mediation. I entirely agree with this opinion and will apply it in this case. It is true that all the numerous cases cited by counsel on both sides support the principle that for an unincorporated body to have the right to sue and be sued in its own name, it must have been created by or under a statute. “It is clear from what I have said in this judgment that my approach to the point at issue is at variance with the approach of the lower court to it as can be gathered from the lead judgment of that court. I have said earlier in this judgment that in the con of the expression, relevant statutes in a case of this nature, one is not confined to enactments establishing these bodies suing or being sued but one has to take into consideration all the enactment relating to the body suing or being sued.

This again is at variance with the view of the Court of Appeal on the same point as expressed by Nnaemeka-Agu, J.C.A. (as he then was) in his lead judgment thus:

First:

“From the authorities cited it appears to me that bodies which can be vested with the status of juristic personality fall into two categories. The second group which, as shown by this case, is the more difficult one, is made up of bodies which are not corporate bodies – companies or corporations and are not expressly empowered to sue and be sued but are created by statute for the discharge of particular functions which functions are regulated by statute.” (Italics mine)

However, having approached the matter in the correct manner, in my view, the conclusion I reach having regard to all I have hitherto said, is that the 1st Respondent cannot be sued eo nomine in this case. So for different reasons I agree that the Court of Appeal, the lower court, was correct in its decision on the point at issue.

I shall now take the second issue for determination, i.e., whether the learned trial Chief Judge was unjustified in barring Chief Williams, S.A.N., Mr. Molajo, S.A.N.and Mr. Sofola, S.A.N., from appearing for the 1st Respondent, the Nigerian Bar Association. The plaintiff sought to restrain them from appearing for the 1st Respondent association on the ground that their appearance for the association was improper, unprofessional, dishonourable and dishonest.

The learned trial Chief Judge has expressed succinctly in the following passage from his judgment the facts upon which the application to restrain the three Senior Advocates of Nigeria was based:

“The three gentlemen sought to be restrained from representing the 1st Defendant are quoted as having expressed views condemning the action of the 1st Defendant passing the “boycott resolution” and opening a role of dishonor in which the applicant’s name was recorded. These facts are not disputed. In fact I wish to say that to the full credit and honour of the three gentlemen that, in this court, they still maintained that they do not support the steps taken by the 1st Defendant, but added that they differed in the course they would have pursued or recommended in solving the issue as against that taken by the plaintiff.

They would have preferred a domestic settlement rather than an action in court.” I need only add that the views credited to the three gentlemen were expressed at a meeting arranged by Rt. Hon. Sir Adetokunbo Ademola at his house at Victoria Island, Lagos, among the representatives of the Nigerian Bar Association, the Senior Elders at the Bar and the plaintiff for 3rd March, 1985 with a view to effecting a reconciliation between the plaintiff and the Nigerian Bar Association. The plaintiff attended the meeting. So did the three gentlemen sought to be restrained from appearing for the 1st Respondent association which was also represented at the meeting.

It is clear that the plaintiff alleged professional misconduct against the three Senior Advocates of Nigeria by their appearances for the 1st Respondent in the circumstances I have stated above. And it appears from the passages from the judgment of the trial court which I have earlier on reproduced in this judgment that the court held that professional misconduct was established against the three gentlemen by appearing for the 1st Respondent and accordingly restrained them from continuing to appear for it.

In rejection the finding as to professional misconduct on the part of the three learned gentlemen Nnaemeka-Agu, J.C.A. (as he then was) said in the lead judgment of the Court of Appeal:

“From all these it appears to me that a conduct will amount to professional misconduct if it contravenes the provisions of the Rules of Professional Conduct in the Legal Profession or is otherwise disgraceful or dishonorable. I agree with the opinion of Dean, J., in the Australian Case of Re: a Solicitor (1960) V.R. 617, at p. 620:

“. . . A solicitor will not be struck off the role for professional misconduct, apart from the statutory provisions, unless he has been personally implicated so that he can be said to have been guilty of conduct which other solicitors in good repute would regard as disgraceful or dishonourable.” Chief Fawehinmi has strenuously urged on us that the role played by the three Senior Advocates is against the spirit of the Rules of Professional Conduct in the Legal Profession. But I am unable to find anything in these Rules that expressly prohibits a lawyer who appeared at the settlement of a case from appearing subsequently as counsel for one of the parties. On the contrary, section 24 of the High Court Law of Lagos State provides:

“In any action in the High Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.” There is nothing in this provision to prevent counsel for parties from participating in such settlements. And by Order 13 Rule 3 of the High, Court of Lagos (Civil Procedure) Rules, 1972, any act which may be done by a party may be lawfully done by his solicitor. So, solicitors briefed by parties may, and do, take part in such a settlement and if the settlement fails, parties and their counsel return to court and continue the hearing. If counsel briefed by parties could participate in both the settlement and the subsequently hearing, a fortiori it appears to me that a lawyer who, as in this case, appeared just as a participant, – and not as counsel to either party could thereafter appear as counsel in the case.” So the Court of Appeal discharged the injunction restraining the three gentlemen from appearing in this case. The argument of the plaintiff that the trial Judge was right in restraining the three Senior Advocates of Nigeria from appearing for the 1st Respondent in the circumstances I have narrated above is predicated on the submission that their conduct offends against the Rules of Professional Conduct in the Legal Profession made by the General Council of the Bar pursuant to section 1 of the Legal Practitioners Act, 1962, and as subsequently amended. There is no doubt, as submitted by the plaintiff, that the Rules of Professional Conduct are a subsidiary legislation, having been made by virtue of a provision in a statutory enactment which I indicated above. The plaintiff relies on Rules 4, 10, 14, 21 and 24 for his submission that the conduct of the three Senior Advocates of Nigeria breached the Rules of Professional Conduct, having regard to the prevailing circumstances. It behooves me therefore in order to show what these rules are all about to reproduce them in full. And in order to see the point now at issue in its right perspective, I intend to reproduce too rule 22 of the Rules of Professional Conduct:

“4. CANDOUR AND FAIRNESS:

(a) The conduct of the lawyer before the Court and with other lawyers should be characterized by candour and fairness; and the lawyer should in court inform the presiding Judge of subsisting decided cases even where the decision is against his client. The lawyer is however entitled to distinguish any such case.

(b) It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of its invalidity, to cite as authority a decision that has been over-ruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments, to mislead his opponent by concealing or withholding in his opening argument positions upon which his side intends to rely.

(c) It is unprofessional and dishonourable to deal other than candidly with the facts in taking the statement of witnesses, in drawing affidavits and other documents, and in the presentation of causes.

(d) A lawyer should not offer evidence which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility; nor should he address to the Judge arguments upon any point not properly calling for determination by him. A lawyer should not in any argument addressed to the court introduce inadmissible remarks or statement likely to influence the jury or bystanders.

(e) A member of the Bar must not promote a case which at his own knowledge is false, nor should he file a pleading or other document which, he knows to be false in whole or in part, or which is intended to delay the trial.

(f) The matters mentioned in paragraphs (b) to (e) above are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice.

10. ADVERSE INFLUENCES AND CONFLICTING INTEREST:

(a) It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.

(b) It is unprofessional conduct to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this rule, a lawyer represents conflicting interests when in respect of one client for whom he presently contends the interests of that client touch or concern confidences of another client to whom the lawyer, at the same time, owes a duty of service.

14. HOW FAR A LAWYER MAY GO IN SUPPORTING A CLIENT’S CAUSE:

(a) Nothing operates more certainly to create or foster popular prejudice against lawyers as a class, and to deprive the profession of that full measure of public esteem and confidence which belongs to the proper discharge of its duties than does the false claim, often set up by the unscrupulous in defence of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client’s cause.

(b) A lawyer should not assert in argument his personal belief in the integrity of his client or of his witnesses in the justice of his cause, as distinct from a fair analysis of the evidence touching those matters.

(c) The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defence of the client’s rights, and the exertion of his utmost learning and ability, to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of every remedy and defence that is authorized by the law of the land, and he is also entitled to expect his lawyer to assert every such remedy or defence. It must, however, be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of a lawyer does not permit, much less does it demand of him for any client, violation of a law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.

21. UPHOLDING THE HONOUR OF THE PROFESSION:

A lawyer should expose without fear or favour before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed, owes it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the Bar against the admission to the profession of candidates who are unsuitable by reason of their moral character or insufficient qualification. The lawyer should strive at all times not only to uphold the honour and to maintain the dignity of the profession but also to improve the law and the administration of justice.

22. JUSTIFIABLE AND UNJUSTIFIABLE LITIGATIONS:

The lawyer must decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. Otherwise it is his right, and having accepted a retainer, it then becomes his duty to insist upon the judgment of the Court as to the legal merits of his client’s claim. His appearance in Court should be deemed equivalent to an assertion on his honour that in his opinion his client’s case is one proper for judicial determination.

24. THE LAWYER’S DUTY IN ITS LAST ANALYSIS:

Lawyers are in duty bound to uphold the law; and no service or advice ought to be rendered or given by them to clients, corporate or individual, of any description or to any cause whatsoever involving disloyalty to the law or bringing disrespect upon the holder of any judicial office or involving corruption of holders of any public office. Improper service or advice in such circumstances as aforesaid is unethical and merits strong condemnation as unprofessional conduct. On the other hand, service or advice rendered or given which impresses clients with the fact that the service or advice not only accords with the letter of the law but also embraces moral principle cannot be too highly commended. He must also observe and advise his client to observe the statute law, save that until a statute has been construed and interpreted by competent adjudication, he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its meaning and extent. Above all a lawyer finds his highest honour in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.

26. CONFIDENCE OF A CLIENT:

(a) It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment and it extends as well to his employees; and none of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without the client’s knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that his obligation prevents the performance of his full duty to his former or to his new client. “Before I examine these rules with a view to finding out whether the submissions of the plaintiff based on them are well founded or not I would like to refer now to

the submission of the plaintiff to us on the inherent jurisdiction of the courts to discipline lawyers for any misconduct. Having regard to section 6(6)( a) of the Constitution of the Federal Republic of Nigeria, 1979, which says:

“(6) The judicial powers vested in accordance with the foregoing provisions of this section

(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;” It cannot now be gainsaid that courts established by our constitution have inherent jurisdiction in appropriate circumstances to exercise disciplinary action over lawyers for misconduct. So I do not consider it necessary for me to consider or even refer to any of the cases cited to us by the plaintiff as establishing this principle. My main pre-occupation in the point at issue is to find out whether on the facts in this case and the authorities the conduct of the three Senior Advocates of Nigeria in appearing for the 1st Respondent association amounted to professional misconduct as found by the trial court and contended for by the plaintiff or not according to the Court of Appeal and the Respondents to this appeal. This I will now proceed to do.

It should be noted that the trial court in saying that the three Senior Advocates of Nigeria were guilty of professional misconduct by appearing for the 1st Respondent did not say that their conduct offended against any of the provisions of the Rules of Professional Conduct in the Legal Profession in Nigeria.

However the Court of Appeal said that there was nothing in those rules which expressly or by necessary implication forbade a lawyer who took part in a meeting to settle amicably a case out of court from again appearing later on as counsel in that case when there was no allegation that the lawyer was the peace maker or mediator.

I have set down earlier in this judgment the relevant rules of Professional Conduct in the legal profession to which our attention has been drawn by the plaintiff.

I will consider rule 10 first. On the facts before us in this case it cannot be remotely suggested that the conduct of the three gentlemen sought to be restrained from appearing for the 1st Respondent amounted to representing conflicting interest, by appearing for that party in this case. The three learned Senior Advocates of Nigeria, any of them, do not owe a duty of service to the plaintiff. It is not suggested that any of the three gentlemen shared or enjoyed the confidences of the plaintiff on any of the points at issue in this case. Their personal views on the points at issue are one thing, sharing or enjoying the confidences of the plaintiff on the same points is another matter. It is the existence of the latter which will under rule 10 debar any of the three gentlemen from appearing for the other side against the plaintiff. Even then a duty of service must be owed by them to the plaintiff, which is not the case as I have already shown.

So it cannot be said that the three gentlemen have breached rule 10 in this case by appearing for the 1st Respondent.

I can now go the consideration of the other provisions of the rules of professional misconduct which I have set down starting with rule 4 which provides for candour and fairness on the part of a lawyer as to his conduct before the court and with other lawyers. The can dour and fairness which is expected of a lawyer is spelt out thus in Rule 4. He should inform the presiding Judge of subsisting decided cases he knows of even where the decision is against him; all facts relevant to the court should be accurately and correctly presented by him to court; inadmissible evidences should not knowingly be presented to the court and he should not promote a case which to his own knowledge is false. Alongside rule 4, I will consider rule 14 with particular attention to rule 14(b). Rule 14 emphasizes the obligation on a lawyer to refrain from the prosecution or defence of a false claim. However, Rule 14(b) makes it clear that a lawyer should insulate himself in the conduct of his client’s case from his personal belief (i) in the integrity of his client and his client’s witness or (ii) in the justice of his client’s cause, the lawyer’s preoccupation being with a fair analysis of the evidence touching those matters. It is not suggested in the case before us that the 1st Respondent’s resistance to the plaintiffs claims against it is based on falsehood. It appears that the facts leading up to the plaintiff’s claims against the Respondents are not in dispute. That is why I believe he has commenced the actions by an originating summons.

It is the application of the law to those facts that the court will then be principally concerned with. Because of Rule 14(c) the three Senior Advocates of Nigeria in question are in duty bound to shed their personal views when conducting this case. It is only when in the conduct of the case they are presenting arguments based on their personal views that it may be said they have breached the rules of professional conduct. And there is nothing to suggest this up to now. Rule 21 enjoins a lawyer to expose without fear or favour before the proper tribunals corrupt or dishonest conduct in the profession or perjury when to his knowledge that crime has been committed and to strive to improve the law and the administration of justice. It is clear that rule 21 hardly applies here.

I now turn to rule 22 which deals with justifiable and unjustifiable litigations and with the provisions in this regard that a lawyer must decline to conduct a civil cause or to make a defence when it is intended merely to harass or to injure the opposite party or to work oppression or wrong to that party. The three Senior Advocates of Nigeria in question are appearing for the defence. And as I have said earlier on in this judgment, this case essentially involves the construction and application of Constitutional and statutory provisions having regard to virtually undisputed facts. The plaintiff has invited the court to construe the legislations involved and apply them to these facts. How can it be said that any legal submissions which the three Senior Advocates of Nigeria will make in this regard will be intended merely to harass or injure the plaintiff or work oppression or wrong against him I don’t think so. The three Senior Advocates of Nigeria, having regard to their eminence at the bar coupled with the responsibility attached to it cannot help but maintain can dour and fairness in their legal submissions. So I cannot say that rule 22 has up to now been breached by them. Nor do I see the imminence of its breach in the circumstances of this case by them.

Rule 24 says a lawyer is in duty bound to uphold the law whilst rule 25 says it is the duty of a lawyer to preserve his client’s confidences. From what I have said earlier on in this judgment it is apparent that the question of the three Senior Advocates of Nigeria not upholding the law by appearing for the 1st Respondent is far-fetched.

It is equally clear that the plaintiff is not a client of any of the three Senior Advocates of Nigeria. Nor is it even alleged in this case that the plaintiff has ever been a client of any of the three Senior Advocates of Nigeria. In fact the question of any of the three Senior Advocates of Nigeria betraying the confidences of the plaintiff does not arise here. None of them on the facts before us enjoyed such confidences. So in my judgment there is no breach by the Senior Advocates of Nigeria of rule 24 or rule 26.

The conclusion I reach therefore having related all the relevant rules to the facts of this case is that I am at one with the Court of Appeal that the three Senior Advocates of Nigeria have not breached any of the provisions of the Rules of Professional conduct in the legal profession by appearing for the 1st Respondent in this case.

The essence of the decision of this court in I. B. W. A. Ltd. v. lmana Ltd. (1988) 3 N. W. L. R. (Pt.85) 633 is that if none of the Rules of professional conduct in the legal profession is breached by the three gentlemen by appearing for the 1st Respondent then each of them cannot be restrained from appearing for that party.

The case also decides it that the rules of professional conduct in the legal profession in England will not apply here.

I need to refer to section 10(4) of The Legal Practitioners Act, 1975, which says:

“It shall be the duty of the bar council to prepare, and from time to time revise, a statement as to the kind of conduct which the council considers to be infamous conduct in a professional respect, and the registrar shall send to each person whose name is on the roll and whose address is shown in the records of the Supreme Court relating to legal practitioners, by post to that address, a copy of the statement as for the time being revised; but the fact that any matters are not mentioned in such a statement shall not preclude the Supreme Court or the disciplinary committee from adjudging a person to be guilty of infamous conduct in a professional respect by reference to such matters.”

The provision reserves the right to adjudge a legal practitioner guilty of infamous conduct in a professional respect by reference to matters not contained in the rules of professional misconduct in the legal profession for the Supreme Court or the Legal Practitioners Disciplinary Committee. And even then as was pointed out in I. B. W. A.Ltd. v. Imana Ltd. (supra) that cannot be done in a proceeding of this nature.

The conclusion I reach therefore is that the trial court was wrong in restraining the three Senior Advocates of Nigeria from appearing for the 1st Respondent and that the Court of Appeal was right in discharging the injunction. The conclusions I have reached above are sufficient to dispose of this appeal. However, submissions on the other issues arising for determination in this appeal have been made to us by counsel for both sides. At least in deference to the industry which counsel undoubtedly put into the preparation of the submissions it is only right that I pronounce on them however briefly.

I now go into the consideration of the point whether the affidavit evidence sworn by the plaintiff in support of his application to restrain the three Senior Advocates of Nigeria is inadmissible or not. I need not go into the contents of the affidavit in any detail. Suffice it to say that it relates (i) in part to the correspondence between the convener of the peace meeting of 3rd March, 1985, Rt. Hon. Sir Adetokunbo Ademola and the plaintiff prior to the meeting wherein the former invited the latter to the peace meeting and the latter stated it as a condition for attending it that he be allowed to record the proceedings at the meeting by means of a tape recording appliance and (ii) in part to the statements made by the three Senior Advocates of Nigeria at the peace meeting which were in fact recorded by the plaintiff with the aid of a tape recording appliance. The plaintiff sought to use the statements as admissions binding on the three learned Senior Advocates of Nigeria at the trial court. The three Senior Advocates of Nigeria objected. Following their objection to the admissibility of the statements the learned Chief Judge who presided over the case overruled it. I have stated earlier on in this judgment his reasons for doing this.

When this matter came on appeal before the Court of Appeal Lagos Division, the three Senior Advocates of Nigeria in their appeal against the decision of the trial court renewed their objection to the affidavit evidence. Nnaemeka Agu, J.C.A. as he then was, in his lead judgment upheld the objection holding as follows:

First: “I must observe that nothing was said expressly in the reply about the demand for tape-recording the proceedings. It looks as if the first paragraph of part of the letter of the 25th of February set out above was designed to explain to the Respondent that due to the limited purpose of the meeting there would be no need to tape-record the proceedings. The Respondent maintains that his acceptance was on the implicit understanding that he could tape-record the proceedings. Nothing is shown to have passed further between Sir Adetokunbo and the Respondent before the meeting assembled on the 3rd of March. What is clear, however, is that the appellants are not shown to be parties to, or to have been consulted before, the correspondences, or to have known about the discussion for tape-recording the proceedings. In this state of the facts I agree with Chief Williams that even if there was an agreement between the authors of the letters that the proceedings could be tape-recorded, as against the appellants, such an agreement would be res inter alias act.”

Second: “So if the issue in this part of the appeal were whether or not the evidence obtained by tape-recording, even unknown to the other party, was admissible, I would easily have decided the point in favour of the Respondent, if primary evidence thereof was tendered. But the issue raised by this appeal goes beyond the questions of ordinary admissibility of evidence: it is as to whether an admission made by a stranger to the proceedings, assuming that was proved, in a correspondence between him and a party to the proceedings could be admitted to bind the other party who was not a party to the admission and persons who came into the proceedings subsequent to the admission.

Section 25 deals with agreement by the parties and not agreement by strangers. In the circumstance, it appears to me that Section 25 of the Evidence Act is quite irrelevant to the issue, as the appellants were not or had not the opportunity of agreeing or not to the tape-recording of the proceedings at the meeting. In my view the correspondences between Sir Adetokunbo Ademola and the Respondent cannot bind the appellants.”

The plaintiff is now contending before us that the trial court was right in admitting in evidence the affidavit evidence and that the Court of Appeal was wrong in rejecting it.

The Respondents to this appeal, i.e. the three Senior Advocates of Nigeria supported the views of the Court of Appeal.

Ordinarily admissibility of evidence is governed by Section 6 of the Evidence Act which says:

“6. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others:

Provided that

(a) the court may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and

(b) this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.”

So, the plaintiff is correct in his submissions to us that once a piece of evidence is relevant, it is admissible irrespective of how it was obtained. The following cases cited namely Sadau v. The State (1968) 1 All N.L.R. 124 at 125, Igbinoma v. The State 25 C.S. at 15-16, and Torti v. Ukpabi (1984) 1 S.C.N.L.R. 214 support this proposition.

The statements of the three learned Senior Advocates of Nigeria upon which the plaintiff relied in his application to restrain them from appearing in this case were clearly admissions within the meaning of that word in sections 19 and 20 of the Evidence Act. I do not think it can be seriously argued that the three Senior Advocates of Nigeria whom the plaintiff sought to restrain by the application in question from appearing in this case are no parties technically speaking to that application. So any relevant admissions made by them will ordinarily be admissible against them in that proceeding.

All what I have been saying above is subject to the proviso to section 6 of the Evidence Act which for ease of reference I reproduce again here:

“Provided that

(a) the court may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and

(b) this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force. ”

This necessarily takes me to section 25 of the Evidence Act upon which the objection to the admissibility was based at the trial court. If the provisions of that section apply to the point I am considering, then the admissions of the three Senior Advocates of Nigeria relied upon by the plaintiff which ordinarily would have been admissible evidence would no longer be admissible because of the proviso to section 6 of the Evidence Act.

The question then is this, do the provisions of Sec. 25 of the Evidence Act apply in the instant case The provisions of Sec. 25 of the Act have been reproduced in a passage from the judgment of the learned trial Chief Judge which I too have already reproduced earlier on in this judgment.

This section grants privilege from disclosure to court any admission made upon express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. There is no question here of the admissions in question being made upon express condition that evidence of it is not to be given for there was no such a condition. It remains therefore to see having regard to the circumstances surrounding the making of the admissions whether the court can infer that the parties agreed that that evidence of it should not be given.

Happily we are not without precedents to guide us in the matter. As regards this point Phipson on Evidence, 12th Edition, page 295, paragraph 679, says:

“Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions; the law, on grounds of public policy, protecting negotiations bona fide entered into for the settlement of disputes. The rationale of the doctrine is a complex of factors. The policy of the law is to encourage settlements; it is thought to be “unfair” that advantage should be taken of the willingness of one party to negotiate; and some cases discover an express or implied contract between the parties that without prejudice communications should not be disclosed. Wig more thought that the doctrine was based on the fact that the statement was conditional, but this is inconsistent with the English and Commonwealth authorities.

It is probable that the modern rule extends to all third parties who act as mediators with a view to enabling the parties to reach a settlement or compromise, whether or not that third party is a legal representative.” The same work says later on in the same paragraph:

“Without prejudice” protects subsequent and even previous letters in the same correspondence; and an admission made during a bona fide attempt to settle a dispute has been excluded even when not expressly made without prejudice. “It cites the case of Scotts Paper Co. v. Drayton Paper Works44R.P.C. 151,529 in support of the latter proposition.

In the case in hand the admissions relied upon by the plaintiff were evidently made during a bona fide attempt to settle a dispute. The admissions, as I have said, were not expressly made without prejudice.

The three Senior Advocates of Nigeria technically speaking may be said to be a party to the dispute at the peace meeting since the association to which they belong was a party to it. But because of what I have said about the juridical status of the association as opposed to its capacity to sue and be sued eo nomine I am prepared to hold that the association as an entity was a party to the dispute to be settled at the meeting and the three Senior Advocates of Nigeria were not. However they were neither counsel for the plaintiff nor for the association at the meeting. They were there to aid the convener of the meeting in his attempt to settle amicably the dispute between the plaintiff and the association. And it appears to me the objective of the convener of the meeting was not to sit as a Judge over the dispute between the two parties involved. In the words of the convener (see letter dated 25/2/85 from the convener to the plaintiff):

“The object of our meeting is not to deal with recriminations but to bring an end to a situation most unbecoming of the profession which is injurious to good name of every member be he right or wrong in this pursuit.” (italics by the convener)

So the object of the meeting was to enable the parties to come to a settlement or compromise. The convener of the meeting was a peace maker or mediator. I am prepared to hold too that the three Senior Advocates of Nigeria who were aiding the convener of the meeting in his bona fide attempt to settle the dispute were to some extent peace makers or mediators. Because of the rationale behind the principle I am now considering, namely the policy of the law to encourage settlement, it only stands to reason that this legal principle of privilege should extend to statements made by mediators in the course of their attempt to settle a dispute.

Otherwise the legal repercussions to them of such statements will deter peace makers or mediators from attempting to settle a dispute out of court.

So I am satisfied that the case of Scott Paper Co. v. Drayton Paper Works (supra) is in point here. The fact that a party sought and even obtained permission to make accurate recordings of the proceedings at a bona fide meeting to settle a dispute or even made that a condition of his attendance will not in my view alter the legal principle that admissions at such a meeting are inadmissible in courts in subsequent legal proceedings between the parties to the peace settlement.

For the above reasons, I am satisfied that the trial court was wrong in holding that the said admissions were admissible in evidence in this case and that the Court of Appeal was right in holding to the contrary. I do not however agree with the Court of Appeal that Section 25 of the Evidence Act is irrelevant to the point at issue. The learned trial Judge was right in applying the section to the issue he had to decide. However, in my judgment, upon a correct application of the section to the point he ought to have held that the admissions were inadmissible.

I now come to the final issue whether the plaintiff has waived the right to object to the appearance of the three Senior Advocates of Nigeria by reason of the fact that the objection was not taken timorously but was taken after the plaintiff had taken several steps in the proceedings with full knowledge of the appearance of the three Senior Advocates of Nigeria for the 1st Respondent. The answer to this issue will depend in my view on whether the right upon which the objection was grounded was one for the benefit of a private individual or one for the benefit of the litigant and the public.

In Ariori v. Elemo (1983) 1 S.C.N.L.R. 1 this court held as follows:

(1) Fundamental rights that are for the sole benefit of the private individual can be waived. These include the right to speedy trial which a litigant can waive by asking for an adjournment of the case in so far as the adjournment does not give rise to a miscarriage of justice.

(2) Fundamental rights that are for the benefit of the litigant and the public cannot be waived. These include the right to speedy trial which a litigant cannot waive by seeking an adjournment if the adjournment is of such a nature that the Court will lose the advantage it has of accurate assessment of the witnesses it had observed in the course of trial. This is because to permit such a waiver will lead to injustice as it is against public policy to compromise illegality, manifest or latent.”

The ground of the objection to the appearance of the three Senior Advocates of Nigeria for the 1st Respondent is that by so appearing they have breached the rules of professional conduct in the legal profession. The right founded as it were on the rules of professional conduct in the legal profession is in my view one not only for the benefit of a litigant but also for the benefit of the public.

The rules relate to a matter of public policy which has to do with the administration of justice in that lawyers being officers of the court are enjoined not to commit professional misconduct. The conclusion I reach is that on the authority of Ariori’s case the right from which the objection of the plaintiff to the appearances of the three Senior Advocates of Nigeria is derived can never be waived by him. So the Court of Appeal is not in my judgment correct in saying that there was a waiver of the right. What I have just said cannot possibly alter the decision I have reached in this appeal.

In the result the appellant’s appeal is dismissed by me with costs assessed at N500.00 to each set of the Respondents. I affirm the order of the Court of Appeal striking out the 1st Respondent from this suit.

OBASEKI, J.S.C.: Two major issues arise for determination in this appeal. The first issue is

“Whether the decision of the Court of Appeal that the Nigerian Bar Association is not a juristic person capable of being sued eo nomine is well founded in law.

” The second major issue is “Whether the decision of the Court of Appeal discharging the order of injunction granted by the High Court of Lagos State (Candido Ademola Johnson, C.J.) restraining Chief F. R. A. Williams, S.A.N., Mr. E. A. Molajo, S.A.N. and Mr. Kehinde Sofola, S.A.N., from continued further representation of the Nigerian Bar Association and from representing any other party in the suit filed by Chief Gani Fawehinmi against the Nigerian Bar Association and the General Council of the Bar is justified and correct in law. ”

The appellant instituted an action against (1) the Nigerian Bar Association and (2) the General Council of the Bar by originating summons claiming;

(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.”

Efforts were made to effect amicable settlement out of court but without success. It is on record and alleged by the appellant that Chief F. R. A. Williams, S.A.N., Mr. E. A. Molajo, S.A.N. and Mr.Kehinde Sofola, S.A.N., participated in the move for settlement out of court after the institution of the action. Subsequently after receiving instructions from the Nigerian Bar Association, the three learned Senior Advocates, Chief F. R. A. Williams, S.A.N., Mr. E. A. Molajo, S.A.N. and Mr. Kehinde Sofola, S.A.N., appeared in court along with other counsel representing the Nigerian Bar Association. Following the appearance of the three learned Senior Advocates, the appelant filed a motion for an order of interlocutory injunction against the three learned counsel restraining them from continued appearance for the Nigerian Bar Association. This motion was followed by an application by motion by the three learned Senior Advocates for an order striking out the name of the Nigerian Bar Association from the suit and striking out the action in its entirety on the ground that the Nigerian Bar Association is not a juristic person and cannot be sued in its name. The learned Chief Judge of Lagos State, Candido Ademola Johnson, C.J., heard arguments on the two motions together and gave a considered ruling in which he dismissed the application of the three learned Senior Advocates on behalf of the Nigerian Bar Association for (1) the name of the Nigerian Bar Association and (2) the action in its entirety to be struck out. He then proceeded to make an order not of

interlocutory injunction but of perpetual injunction against the three learned Senior Advocates restraining each of them from giving continued representation to the Nigerian Bar Association or giving representation to any other party in the suit.

The Nigerian Bar Association and the three learned Senior Advocates being dissatisfied with the ruling appealed successfully to the Court of Appeal. The Court of Appeal set aside and reversed the decision of the High Court (Candido Ademola Johnson, C.J.) in the two applications. The Court of Appeal then struck out (1) the name of the Nigerian Bar Association and (2) the action on the ground that the Nigerian Bar Association is not a juristic person and cannot be sued eo nomine.

The Court of Appeal found nothing to justify the order of injunction against the three learned Senior Advocates and accordingly discharged it. It is against this decision that the appellant has now appealed.

The briefs filed by the appellant and the three learned Senior Advocates are a tribute to industry and excellence. The issues formulated and agreed on as issues arising for determination in this appeal are fourfold. They are:

“(1) whether the Nigerian Bar Association is a juristic person capable of suing and being sued in its name;

(2) whether the Chief Judge was unjustified in barring Chief F. R. A. Williams, S.A.N., Mr. E. A. Molajo, S.A.N. and Mr. Kehinde Sofola, S.A.N., from appearing for the Nigerian Bar Association consequent upon what they did and said at the meeting of the 3rd of March, 1985 in the house of Sir Ademola;

(3) whether the affidavit evidence sworn to on the 29th of April, 1985 by the appellant is inadmissible;

(4) whether the Respondent waived his right to object to the appearance of the three Senior Advocates.”

These issues have been dealt with exhaustively by my learned brother, Agbaje, J.S.C, in the judgment just delivered by him. His opinions on all the issues accord with mine and I adopt them as my own.

Additionally, the importance of these issues gives me the urge to add these further comments.

The Nigerian Bar Association celebrated its centenary anniversary in 1986. Its existence thus dates back to 1886. It was not a creation of statute and has remained so without adoption by any statute.

It has of course received recognition and mention in various statutes particularly the Legal Practitioners Act, 1975 and the Legal Education Act. The Legal Practitioners Act, 1975 placed the management of the Nigerian Bar Association under the Nigerian General Council of the Bar (see section 1). However, the Constitution of the Nigerian Bar Association was made supreme in all matters pertaining to the Nigerian Bar Association.

Administration of justice – Meaning of – Justice administered by the courts is justice according to law. When one talks of administration of justice outside the court, the strict rules of admissibility of evidence are relaxed and extraneous matters which will not meet the strict rules of admissibility under the Evidence Act are admitted and considered. In the strict sense of the phrase known to law, no authority other than the courts or tribunals set up to meet the requirements of impartiality and independence provided for by the 1979 Constitution can administer justice. When therefore the learned Chief Judge of the Lagos High Court observed and commented;

“The said conciliatory meeting was held while proceedings were in court, ostensibly to aid administration of justice by securing a settlement among the litigants. In that role, the learned Senior Advocates of Nigeria and elders in the profession assumed the mantle of impartial conciliators and the duties of an officer in aid of justice.”

He was in error.

The justice in conciliation is that of concession to calm the atmosphere and bring peace. It has nothing to do with determination of the rights of the parties according to law. The misconception of the role of conciliators in conciliatory meetings in the search of settlement outside the walls of the court was a fundamental error which brought about disorientation of the learned Chief Judge in the approach to the question of injunction before him.

It is not the law in Nigeria that any legal practitioner who participates in an effort to settle a dispute already in court out of court is disqualified and incompetent to appear for any of the parties in the suit. He is not an arbitrator or an independent arbiter in the sense in which a Judge is in a court or other tribunal whose independence and impartiality is secured and maintained by law.

Capacity to sue and be sued; who can sue or be sued Any person natural or legal artificial may be sued. This is the law in England. See Vol. 9 Halsbury’s law of England 4th Ed. paragraph 1201 page 716. It is also the law in Nigeria. See section 6(6)(b) of the Constitution of the Federal Republic, 1979.

Who is a natural person It is a human person who has life and blood in him or her whether a citizen of one State or another given protection by law and endowed with human qualities.

Who is an artificial or legal person Usually, it is a corporation aggregate or sole. It can be created by law, e.g. University of Ibadan Act, 1962, University of Lagos Act, 1967 or incorporated under the law, e.g. companies under the Companies Act, 1968.

Corporation aggregate and corporation sole have been given adequate definitions in Halsbury’s Laws of England. Juridical personality is not equivalent to a juristic personality. Juridical personality is acquired when the law accepts and recognizes the existence of unincorporated associations. The capacity of suing and being sued is not thereby given by the mere recognition and acceptance of its existence. Thus, the acceptance and recognition by

(a) The Legal Practitioners’ Act, 1975 (sections 1, 3, 7, 9,11,14,22 and 23 thereof);

(b) Legal Education (Consolidation etc.) Act, 1976 as amended by the Legal Education Consolidation etc. Act, 1977 (sections 19 and 27 thereof);

(c) The Interpretation Act, 1964 (section 2(1) thereof)

(d) Item 48 of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria, 1979 cannot be construed as the conferment on the Nigerian Bar Association of the capacity to sue. Only the law of the land can confer that attribute or capacity and in most statute the capacity to sue and be sued of the authority or body they create is expressed.

Where not expressed, the implication will be obvious from the expressed provisions of the statute especially where a power given to it may be exercised to the detriment of others.

See Thomas v. Local Government Service Board (1965) 1 All N.L.R. 168. See Forest City MFG. et al. v. Garment Workers’ Union. 233 Missouris Report 1975 (A decision of St. Louis Court of Appeal). Taff Vale Railway Co. v. Amalgamated Society of Railway Servants (1901) A.C. 426; Amalgamated Society of Carpenters, Cabinet Makers & Joiners v. Braithwaite, (1922) 2 A.C. 440. Bonsor v. Musicians’ Union (1954) Ch. 479 (1956) A.C. 104; Willis v. Association of Universities of the British Commonwealth (1965) 1 Q.B. 140 Knight and Searle v. Dove (1964) 2 Q.B. 631; Solicitor General Western Nigeria v. Adedoyin (1973) U.I.L.R.143.

“The legal characteristics of a registered trade union differentiate it from other voluntary associations and may entitle it to be called a legal entity, while at the same time remaining an unincorporated association of individuals.” per Lord Keith of Avonholm in Bonsor v. Musicians’ Union (supra).

The Constitution of the Nigerian Bar Association is not a statutory instrument. It is not a subsidiary legislation to the Legal Practitioners Act. It is a pure and simple private document which the members of the Nigerian Bar Association were entitled to draw up in exercise of their right to provide a constitution for the Association to regulate its affairs. It was accorded its due superior position by the Legal Practitioners Act, 1975 in the conduct of the affairs of the Nigerian Bar Association by the General Council of the Bar. This does not make the Nigerian Bar Association a juristic person. It only gives the body recognition as a legal entity made up of legal practitioners. The fact that the legislature has in the Legal Practitioners Act, 1975 and the Legal Education (Consolidation etc.) Act, 1976 given the Nigerian Bar Association representation on the Body of Benchers and the Council of Legal Education is no indication that legislature constituted the Association a suable entity.

It is significant to know that the Nigerian Bar Association can only own property, or interest in land by Trustees appointed under section 13 of its Constitution Exhibit F. The name ‘Nigerian Bar Association’ is not a registered name under any statute although it is recognized and accepted as the name of the body by various statutes.

The Nigerian Bar Association loses nothing by being declared a non juristic person. It can always sue and be sued in a representative capacity. The representative action is always available to it and to all persons wronged by it. The various State High Court Civil Procedure Rules make provisions for representative actions.

The decision of the Court of Appeal on the first issue is therefore in accordance with and justified by the law.

Turning to the second issue as I said earlier, the learned Chief Judge was fundamentally in error in holding that Chief F. R. A. Williams, S.A.N., Mr. E. A. Molajo, S.A.N. and Mr. Kehinde Sofola, S.A.N., were constituted into independent and impartial arbiters disqualified from giving legal representation to any of the parties because they participated in the unsuccessful move to settle the dispute between the parties out of court after the originating summons was filed. They would have preferred a domestic settlement rather than an action in court.

Was their appearance improper, unprofessional, dishonorable and dishonest This question arises because allegations contained therein constituted the main ground for the application for the order of injunction. I will regard the allegation as complaint of a breach of professional conduct in the legal profession Beyond the mere allegation, were there facts adduced constituting and proving an infamous conduct and a breach of professional conduct

The relevant rules of professional conduct in the legal profession that requires examination in the list of the complaints are Rules 4(a), (b), (c), (d), (c) and (f); 10(10) and (b); 14(a), (b) and (c); 21, 22, 24 and 26.

Having examined the facts in the light of the above rules, I agree with my learned brother. Agbaje, J.S.C, and the Court of Appeal that it has not been established that any of the three learned Senior Advocates has breached any of the said Rules.

The facts containing admissions recorded from the peace meeting cannot in law be admitted in the court proceedings and I agree with my learned brother that the affidavit evidence containing those admissions produced by the appellant is inadmissible.

The right of the plaintiff/appellant to complain of a breach of Rules of Professional Conduct is a right to promote the course of justice and as the promotion of the course of justice is an ever present duty on all, especially officers of the court as the appellant is, that right can not be waived.

However, as the appellant has failed to establish any breach, the second issue must be resolved against him. The appeal therefore fails and is hereby dismissed with N500.00 costs to each set of respondents.

The decision of the Court of Appeal is hereby affirmed.

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SC.229/1986