Chukwuma a. J. Chinwo V. Okechukwu Owhonda & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO. O. OMAGE, J.C.A.
In this appeal, the appellant seeks the order of this court to reverse the order in the ruling delivered on 29th March, 2004 by the Hon. Chief Judge, Rivers State and send the case to another court in the High Court for hearing and determination. The ruling of the Hon. Chief Judge, Rivers State is that the appellant’s claim filed on 14th January, 2004 be struck out for lack of jurisdiction on the ground that the complaint against the respondent is not justiciable as it is made against a voluntary body. The matter commenced thus: The plaintiff now appellant who is a legal practitioner took out a writ of summons on 14th January, 2004 against the then representatives of the executive of the Port Harcourt Branch of the Nigerian Bar Association. The said executives are: (1) O. Owhonda. Esq: (2) T. O. Waamah. Esq., (3) F. A. Iyagba. They are sued for themselves and on behalf of the Executive Committee of the Nigerian Bar Association, Port Harcourt Branch. In the suit, the plaintiff C.A.J. Chinwo. Esq. who is a legal practitioner seeks the following reliefs:
(1) A declaration that the bye-laws of the Nigerian Bar Association (NBA) Port Harcourt Branch in so far as it creates condition for participation in the election of officers in the Branch contrary to the Constitution of Nigerian Bar Association, the Legal Practitioners Act and the Nigerian Constitution are null and avoid.
(2) A declaration that the decision and action of the defendants in refusing to collect practicing fees and Bar due, from the plaintiff and other member or the Branch in 2004 unless they pay the same along with their welfare scheme contribution is contrary to the bye-laws itself, the Constitution of the Nigerian Bar Association, the Legal Practitioners Act and Nigerian Constitution are thus null and void and of no effect.
(3) A declaration that participation of the members of the branch in the Welfare Scheme is not mandatory and should not be the basis for denying a member of the Association who has paid his practicing fees and Bar dues of right to participate in activities and partake in privileges ordinarily available to members of the Association such as voting and being voted for in elections, having court sessions, where necessary, held in one’s honour, being recognized and recommended as a financial member of the Association where necessary.
(4) A declaration that the decision and action of the defendants without the approval of the general meeting of the Branch refusing to collect Bar dues and practicing fees from members of the Branch in 2004 unless they accompanied same with their “welfare scheme contribution” is aimed at or will result in disenfranchising a majority of the members of the election and result in the election of an unpopular executive, if any, contrary to the Constitution of the Nigerian Bar Association, the bye-laws of the Branch and the Constitution of the Federal Republic of Nigeria.
(5) An order of perpetual injunction restraining the defendants, their agents, servants and privies from continuing to implement the Welfare Scheme in such a way as to:
(a) Deprive members of the Port Harcourt Branch of the Bar Association of the traditional privileges ordinarily available and due to members who have paid their practicing fees and Bar dues such as voting and being voted for in elections into the branch executive, having court sessions held for where necessary and being recognized and recommended as financial members or the Association where necessary and thus putting them in a position more disadvantageous than their counterparts in other branches.
(b)Make the participation the welfare, insurance or other such schemes mandatory using the machinery and facilities of the Nigerian Bar Association contrary to the Constitution of the Nigerian Bar Association and the Constitution of Federal Republic of Nigeria.
Both parties filed their pleadings in the court below, and the defendants filed a motion supported by an affidavit. In it as in para, 8 of the statement of defence, the defendant urged the court in the motion to strike out the suit because the defendants prayed (1) The suit is frivolous. (2) The suit is not justiciable.
The learned Chief Judge decided to hear the motion of the defendants. The defendants urged the coul1 to strike out the suit because the court lacks jurisdiction, the subject matter of the suit. The defendants deposed in para. 3 of the affidavit that the pleadings of the appellant show that the latter objected to the defendants’ imposing the dues to be paid for welfare on the local branch, with payment for dues payable to the national body and seeks the intervention of the court because the Port Harcourt Branch of the Nigerian Bar Association made bye-laws which create conditions for participation in the elections to offices and holding of offices.
The appellant averred that the defendants are enforcing payment of welfare levies (made) under bye-laws, as a condition for collecting the practicing fees and for Bar dues. Defendants said it is for this reason that the plaintiff/appellant seeks the intervention of the court, whereas the bye-laws which are contained in part ix, paras. 1 & 5 of the bye-laws have been thoroughly debated and considered by members of the port Harcourt Branch of the Nigerian Bar Association before the same was submitted to the National Executive Council of the Bar Association at the Jos meeting of the National Executive body who approved of same. Counsel for the defendants submitted that the Port Harcourt Branch of the Nigerian Bar Association is a voluntary Association, and not statutory association since Article 4 of the Constitution of Nigerian Bar Association makes membership of an enrolled lawyer automatic on being called to the Bar, therefore whatever takes place in its meeting is a domestic affair. He referred to Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558, (1989) 2 NSCL 43 at 86 per Karibi-White, JSC. Ukala of counsel to the defendants, now respondents submitted further in the court below that the grouse of the plaintiff is the welfare levy, and the method of enforcing its payment. The plaintiff also objected to the pre-conditions imposed in the bye-laws for holding an elective position in the Nigerian Bar Association, which the appellant said is in conflict with the Constitution of Nigeria and the Constitution of the Nigerian Bar Association. The defendants’ counsel in the court below submitted that the principle of ultra vires has no place in a voluntary organization, and the court leaves a voluntary organization like the NBA to manage its affairs in accordance with the rules of majority. He referred to Onuoha v. Okafor (1983) 2 SCNL p. 244 at 254; Foss v. Harborttle (1843) 2 Hare 461.
In reply to the submission of the applicant on the motion filed by Ukala of counsel for the defendant/applicant, Chinwo of counsel to the plaintiff asked the following:-
(1) Whether the statement of claim discloses any right of the plaintiff which is breached or threatened to be breached.
(2) Whether the Nigerian Bar Association is a voluntary organization or not.
(3) Whether the Nigerian Bar Association through its representatives or officers can influence a citizen albeit a member in its legal strength.
(4) Whether a member whose civil rights within the organization and a citizen of Nigeria under the Constitution are infringed is entitled to come to court and seek redress.
(5) Whether the making of a bye-law by a branch of the Nigerian Bar Association which is contrary to the Constitution of the Nigerian Bar Association does not entitle him to seek redress in court especially where the Nigerian Bar Association Constitution does not provide an alternative means of seeking redress.
(6) Whether merely belonging to an Association like the Nigerian Bar Association without more strips the citizen like the plaintiff of his right under the Constitution including the right of access to court.
Respondents’ counsel to the motion – Chinwo, Esq. submitted that he has a member of ANPP for example is entitled to complain to the court if his right also to hold office in the NBA Port Harcourt Branch is impugned or denied. He submitted that Article 14 of the Nigerian Bar Association which is inconsistent with its provisions shall be void; similarly section 142(1) and (2) of the Nigerian Constitution. Counsel referred to the case of Bello v. A.-G., Oyo B State (1986) 5 NWLR (Pt. 45) 828, (1986) 12 SC. He submitted that even in the case of Foss v. Harbottle (1843) 2 Hare 461, where crime is imputed a right of the court exists to intervene, though this is not a crime where there is a breach of the Constitution of the body as in the case determined by the Hon. Chief Judge, Port Harcourt in Echie v. Echie the court should intervene. The Hon. Chief Judge, Port Harcourt reviewed the issues as presented by both panics in the motion on notice filed by the respondent, and came to the following as issues in dispute between the panics namely, whether the Nigerian Bar Association is a voluntary organization or not, whether the majority rule principle applies when the “vires” of the resolution is questioned in the court by a member and whether the defendants could enforce payment of welfare contribution created under the bye-laws as a condition for the respondents (to the motion) to take part in the Nigerian Bar Association and other benefits since Articles (ix) and (x) of the bye-law of the Port Harcourt Branch of the Nigerian Bar Association provide for qualification to hold a branch office and (11) Disqualification from holding any branch office.
The Honourable Chief Judge considered the above issues, and came to the following conclusion that inclusive of the Port Harcourt Branch, and its bye-laws the Nigerian Bar Association is a voluntary body and except a criminal imputation or accusation is made against its body, it is generally left to manage its affairs without interference by the court, particularly if its decision in civil matters is arrived at by a majority and if such decision accords with their Constitution. In such a situation, the court will ordinarily not interfere with the internal affairs of the voluntary organization. The Honourable Chief Judge concluded that with the evidence in the affidavit that the national body of the Bar Association has approved of the bye-law, at its Jos meeting, the court will not interfere with the internal matter of the Bar Association.
The court below thereby allowed the prayer in the defendants’ motion and dismissed the plaintiff’s claim.
The plaintiff was dissatisfied with the decision of the court below and has filed this appeal. The appellant filed four grounds of appeal. He filed his brief on 29/6/2004, and formulated five issues for determination of the appeal. These are:-
(1) Whether the learned trial Chief Judge is right to hold that he had no jurisdiction when the claim before him allege infringement not only of the plaintiff right as a member of the Nigerian Bar Association but his fundamental human right as a citizen of Nigeria.
(2) Is the learned trial Chief Judge light in holding that under the rule in Foss v. Harbottle, the plaintiff was not entitled except on the floor of the Association to challenge the bye-laws of the Association when he alleges breach not only of the Constitution of the Association but his fundamental rights (civil rights) under the Constitution of the Federal Republic, 1999.
(3) Whether the Chief Judge was right when he held that the courts have no business in the affairs of voluntary association even when such affairs include acts that are in breach of the Constitution (Supreme Law) of the country.
(4) Assuming without conceding that the matters in controversy in this case are domestic affairs is the rule excluding the jurisdiction of court in such a case when it adversely affects the civil rights and obligations of a citizen not unconstitutional now in view of Ss. 36 and 46 of the Constitution of Federal Republic of Nigeria.
(5) Whether the learned trial Chief Judge was right when he held that while the court could intervene in the domestic affairs of an association if there were allegations of crime or other fundamental vice it would not intervene where there is breach of the Constitution of the country.
In his brief, the respondent conceded on issue 5 of the appellant’s brief which require determination is “whether the learned trial Judge was right in declining jurisdiction on the grounds that the claim was not justiciable.
I am in agreement with the lone issue formulated by the respondents that the issue to be determined in this appeal is whether or not the learned trial Chief Judge was right in ruling that the court will not exercise its jurisdiction in a decision taken on a non-criminal matter by a voluntary association which runs its affairs by a majority decision provided the decision thus taken is not in contravention of its stated bye-law. See Foss v. Harbottle supra. The record shows Reports that the members of the Port Harcourt Branch of the Nigerian Bar Association had a general debate before the adoption as bye-law of the parts of the law which the appellant objected to at the debate. The detail is in parts as contained in parts (ix) and 10 of the bye-law B formulated and adopted by the Port Harcourt Branch of the Bar Association particularly on
“(1) The condition for qualifying to hold office in the branch at Port Harcourt which include membership of the branch for at least 3 years before nomination for any office.
(2) Evidence of payment as at the date of nomination of practicing fees as and when due for the past three years; and payment of annual subscription and levies including levies under the welfare scheme of the branch.
(3) That contestant must be a legal practitioner in actual practice and that he must have attended at least seven general meetings in each of the two years preceding immediately the election and must have served in one of the committees of the branch. He must satisfy the Supreme Court prescribed post enrolment requirement for various offices.”
The bye-law provides further:
“No serving branch officer shall be a member of any political party or association or solicit or canvass for an appointment in government and if offered must decline otherwise such defaulting officer shall be guilty of professional misconduct. Any serving branch officer guilty of professional misconduct shall (a) vacate his office (b) and must not be allowed attending at any meeting of the branch.”
It is apparent after reading the issues formulated by the appellant that the grouse of the appellant is particularly on the last two provisions in the bye-law which prescribe qualification, and disqualification of members to hold elective office to with the ability to hold simultaneously, a position in the branch of the Port Harcourt Bar and a political office through any political party. The record shows that the particular positions in the bye-law of the Port Harcourt Branch of the Nigerian Bar Association is a subject of debate in which majority view prevailed before it was adopted.
Furthermore, the respondent counsel submitted that the bye-law as a whole was submitted for approval by the national body of the Bar Association at the Jos meeting of the National Executive Committee or Council NEC, the proposal in the bye-law was adopted and approved with a demur of the appellant, but he and other, if any, are in minority. The conclusion therefore is that the provisions of the bye-law in its entirety enjoys the approval of the entire majority of the members of the Nigeria Bar Association and if it is said that it does not, the onus is on the appellant to cite the national body as party to the proceedings and prove that the bye-law does not enjoy the approval and of majority view. The appellant has failed to do so. The question may then be asked on what basis did the appellant reach the conclusion in the court below that the provision of the bye-law is inconsistent with the Constitution of the Nigerian Bar Association. It would appear to me that the issue is not proved, here or in the court below, and the onus is on the appellant to prove it on a balance of probabilities. The averment of it is insufficient to conclude as averred by the appellant. The second basis of the complaint of the appellant is that the provisions which restrict the simultaneous holding of a position in the Port Harcourt Branch office of the Nigerian Bar Association and a political office through a political party is inconsistent with the 1999 Constitution of Nigeria.
In my view the … the court below of the Bar Association is not justiciable Akinbi v. Mil. Gov., Ondo State (1990) 3 NWLR (Pt. 140) 525. Furthermore, there is nowhere in the 1999 Constitution of Nigeria where it is provided that the holder of a political office shall hold also an office in the Port Harcourt Branch of the Bar Association.
What the Port Harcourt Branch of the Bar Association has made its bye-law on, is for an aspirant to any of its branch office to elect either to belong as an office holder in its branch, or to hold on to his office in the political party. The bye-law provision does not prevent the holder of a political office under the Constitution from being a member of the Nigerian Bar Association: it simply says the holder of a political office shall not also be a holder of office in the Port Harcourt Branch of the Bar Association. There is therefore nothing in the bye-law which is inconsistent with the provision of the Nigerian Constitution. The bye-law of the Port Harcourt Branch of the Nigerian Bar Association simply enhances and reinvigorates the constitutional right of the freedom elect under the Constitution of Nigeria. The reference to section 40 or the Federal Constitution on the right to free associations misconceived is when its application is limited to one side only. The right exists for either or both parties, the political party or Bar Association to accept or reject a contestant to its fold. Either may make conditions suitable to its body. In the exercise of his right to free association, the Bar Association elects and exercises it’s right to reject a contestant to its office and chose to exclude a political office holder. It is not unconstitutional, both parties are exercising their individual right and neither is wrong or in breach of the constitutional provision as contained in section 40 of the Nigerian Constitution.
Similarly in the exercise of its power to generate funds, subject to the concurrence of the majority members, the payment of a fee imposed on themselves is not misplaced, if it is levied for use for the welfare of the members. For instance, the appellant wrote in his brief about a right to be honoured in life and in death by members of the Port Harcourt Branch of the NBA and it appears that he does not object to the imposition of an adhoc collection of dues, and is opposed to collection of dues for welfare. There appears to be a contradiction in this. Certainly it is desirable for the Bar to have a source of income gives a greater assurance of ready funds to be used for the purpose of his desire. There is automatic membership of the Bar Association on a lawyer being called to the Bar. Such a lawyer is under obligation to pay the prescribed fees due to the Nigerian Bar Association; and any due prescribed by the branch to which he belongs provided such dues is a product and conclusion of majority votes, the court will consider it the internal affairs of a voluntary association and will not intervene. See Foss v. Hartbottle supra.
In the instant case, I find myself in agreement with the ruling of the court below for the reason which I have elucidated above. I have no reason therefore to set aside the ruling of the learned Chief Judge, Rivers State. I affirm it. I dismiss the appeal. I make no order as to costs.
In his brief under the title conclusion, the learned counsel to the appellant made remarks about his views as to why the Honourable Chief Judge ruled as he did. My view of the comment is that it is made in bad taste and unworthy of a learned counsel at the Bar.
Other Citations: (2006)LCN/2005(CA)
