INSIGHT

It is trite that these are not the best of times as it concerns relations between the leadership of the Nigerian Bar Association (NBA) and its Section on Public Interest and Development Law (SPIDEL).

SPIDEL is one of the three sections known to the NBA Constitution (as amended). The section is a baby of foremost human rights activist, Dr. Olisa Agbakoba SAN who designed the entity – alongside fiery good governance advocate and former Chairman of the National Human Rights Commission (NHRC), Prof. Chidi Odinkalu – as a bulwark against impunity and executive lawlessness. It is noteworthy that Agbakoba is the Chairman of the NBA Trustees.

Over the years, and bouncing back from years of inertia, SPIDEL has undertaken key interventions that endeavour to safeguard the civic space while promoting the rule of law.

DIFFERENT STROKES

It is a measure of the critical role of SPIDEL in NBA affairs that the immediate past NBA President, Mr. Olumide Akpata adjudged SPIDEL as the “heartbeat” of NBA. SPIDEL had an excellent relationship with the Olumide Akpata regime that it conferred on the former NBA President an “Excellent Leadership Award.” Immediate past SPIDEL Chairman, Dr. Monday Ubani stated that “Akpata’s leadership style compelled SPIDEL to give him the award. It is an award that he wholeheartedly deserves.”

MAIKYAU’S ANGST

In recent times however, SPIDEL’s fortunes seem to have fallen on hard times. This is especially the case under the current NBA leadership. It is safe to say that there is no love lost between the leadership of SPIDEL and NBA under the leadership of Mr. Yakubu Maikyau SAN.

The discord peaked recently with Maikyau’s letter to SPIDEL’s Chairman, Mr. John Aikpokpo-Martins, alleging that SPIDEL was “undermining” his leadership. This came on the heels of some public-interest interventions by SPIDEL which climaxed with its lawsuit against Minister of Art, Culture and Creative Economy Hannatu Musawa and media personality Kenny Ogungbe for allegedly violating the National Youth Service Corps Act. This led Maikyau to direct SPIDEL to pause all its ongoing activities.

SPIDEL MEMBERS FIGHT BACK

In response to what they deemed as an affront on the NBA Constitution, SPIDEL members unanimously passed a vote of confidence on the section’s Executive Committee at an Extra-Ordinary General Meeting, urging it to continue with all its activities. Some SPIDEL members have also initiated lawsuits in various courts praying the courts to stem alleged unconstitutional interference by the NBA leadership in the affairs of SPIDEL.

THE COURT ORDER

Instructively, a Delta State High Court sitting at Orerokpe has directed Maikyau and NBA trustees to appear before the court to show cause why injunctions should not be granted against them as sought in a lawsuit by immediate past SPIDEL Publicity Secretary Godfrey Echeho. There are strong indications that the lawsuits and especially the order may have activated the principle of lis pendens. The principle implicates that parties must not do anything to foist a fait accompli on courts when a matter is properly before a court of law.

THE PRECEDENT: JOYCE ODUAH CASE

CITY LAWYER recalls that Justice Ahmed Mohammed of the Federal High Court in Abuja had harshly berated NBA during its face-off with then out-of-favour General Secretary Joyce Oduah. While 9 of the 11 National Officers sitting as the Executive Committee had suspended Oduah for alleged infractions, the decision was ratified by NBA-NEC notwithstanding the pendency of a lawsuit brought by the embattled former General Secretary.

Ruling on a motion brought by Oduah, the court lampooned NBA-NEC for engaging in self-help, holding that it foisted a state of helplessness on the court while impugning its majesty and integrity. Justice Mohammed held that having joined issues with the plaintiff, and with or without express order of court, no party ought to have taken any further steps on the subject matter of the litigation.

ACTIVISTS AND EXPECTATIONS

Both human rights activist, Mr. Ebun-Olu Adegboruwa SAN and Bar Leader, Mr. Jibrin Okutepa SAN also had harsh words for NBA-NEC, saying it failed the rule of law and due process tests by proceeding to take decision on the matter notwithstanding the pendency of Oduah’s lawsuit.
Said Adegboruwa: “Without mincing words, the NBA President no doubt failed the test of due process of law in the steps that he has taken pursuant to the suspension of the General Secretary. The moment the President got to know of the pending court case by the General Secretary and that an order of injunction was being sought against the suspension, he owed the court the sacred duty to keep matters on hold and stay further action on the said suspension, as a mark of respect and deference to the authority and integrity of the Court. The Motto of the NBA is RULE OF LAW and it behoves the President to err on the said of the law, even if it involves sacrifices on his part.”

In a post he made available to CITY LAWYER, Okutepa wrote: “If the news I read of the just concluded National Executive Council, of NBA that the suspension of Mrs Joyce Oduah as General Secretary of NBA has been rectified, is true, then the National Executive Council of NBA has exhibited the worst example of disrespect for the rule of law and showed total disrespect to the pending processes filed by Mrs Joyce Oduah, Challenging her suspension.”

Setting out the circumstances of the case which is on all fours with the SPIDEL-Maikyau Debacle, Okutepa wrote: “There is no dispute that Mrs. Joyce Oduah, had gone to the Federal High Court to challenge her suspension by the NEC of NBA. Those who took part in the said suspension have been sued. There was a motion for injunction pending and which NBA and incorporated Trustees of NBA are aware of. The case is suit No FHC/ABJ/CS/1426/2022. It was adjourned to 23rd August 2022.

“That decision to ratify her suspension is a bad example coming from an association that should be the vanguard of, protection of and promotion of the rule of law. Our courts have consistently frown at resorts to self-help to undermine pending processes.

“The principle is settled that the Court cannot be hamstrung by a party who changes the status quo during litigation. Thus, if a party cannot prove its case, the Court is not obliged to indulge the party because it had changed its position during litigation and it may suffer the consequences if the case is resolved against such a party. In consequence, a party who resorts to self-help cannot enjoy any favour from the Court.

“That is the essence of the dictum of Nnaemeka-Agu JSC as he then was, in Registered Trustees Apostolic Church v. Olowoleni (1990) 4 NWLR (Pt.1580) 514 at 537 where he said: “Once parties have turned their dispute over to the Courts for determinations, the right to resort to self-help ends. So it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of fostering upon a Court a situation of complete helplessness or which may give the impression that the Court is being used as a mere subterfuge to tie the hands of one party while the party helps himself extra judicially. Both parties are to wait the result of the litigation and the appropriate order of Court before acting further.

“My lord Hon Justice Nweze JCA as he then was spoke eloquently to the point I am making when he said: “Above all, it has long been settled on the authorities that a court would not hesitate to invoke its disciplinary powers to prevent its processes from being used as a mere subterfuge. Thus, once parties have turned their dispute over to the courts for determination, the resort to self-help must end. Thenceforth, it would not be permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness. Indeed, a court would always look with askance at any disingenuous approach which may give the impression that it is being used as a mere subterfuge to tie the hands of one party while the other party helps himself extra-judicially. Both parties are expected to await the result of the litigation and the appropriate order of court before acting further. As such, it is a reprehensible conduct for any party to an action or appeal, pending in court, to proceed to take the law into his hands without any specific order of the court and to do any act which would pre-empt the result of the action. The courts frown against such a conduct and would always invoke their disciplinary powers to restore the status quo, Registered Trustees, Apostolic Church v Olowoleni (1990) 6 NWLR (pt 158) 514; Combined Trade Ltd v A.S.T.B. Ltd. (1995) 6 NWLR (pt. 404) 709; Ezegbu v. F.A.T.B. Ltd. (1992) 1 NWLR (pt.220) 699. This ancient rule is even more cogent in a constitutional democracy such as ours where the Judiciary operates as “the guardian of the Constitution”. In the discharge of its guardianship role, it has a duty to ensure that every arm of Government operates only within the substantive and procedural frameworks which the Constitution ordains, AG Bendel v AG Federation [1983] ANLR 208.” Per NWEZE, JCA as he then was now JSC at PP. 40-41, paras. E-F in HON JUSTICE T. A. OYEYEMI (RTD) & ORS V. HON TIMOTHY OWOEYE & ANOR (2012) LPELR-19695(CA).”

Continuing, Okutepa said: “Why will NBA not wait and respect the pending processes which it was aware of and had engaged some senior lawyers to defend. The dispute in this matter having been handed over to the Court for determination, NBA and National Executive Council cannot be allowed to take the law into their own hands. The rule of law and the rule of force are mutually exclusive. Law rules by reason and morality. Force rules by violence and immorality. See The Military Governor of Lagos State & Anor. vs. Chief Emeka Odumegwu Ojukwu & Anor. (1986) 1 NWLR (Pt. 18) 621. A similar action was deprecated by the Supreme Court in The Military Governor of Lagos State v. Chief Emeka Odumegwu Ojukwu (supra), wherein Obaseki, J.S.C. As h/e then was stated as follows: “In the area where the rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world which proclaim loudly to follow the rule of law, there is no room for the rule of self-help by force to operate. Once a dispute has arisen between a person and the government or authority and the dispute has been brought before Court, thereby invoking the judicial powers of the State, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of the intention to pre-empt the decision of the Court. The Courts expect the utmost respect of the law from the government itself which rules by the law.”

“As my lord Amina Angie JCA as he the was said in DUMBILI NWADIAJUEBOWE VS COL. C. D. NWAWO (RTD.) & ORS (2003) LPELR-7234(CA): As the Supreme Court observed in Ojukwu’s case, the judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law, and the law should be evenhanded between the government and citizens. What was the hurry? I do not see what the Delta State Government had to lose if it had waited for the substantive case to be decided before it published the Legal Notice. The law is trite that once the Court is seised of a matter, no party has a right to take the matter into his own hands. See The Military Governor of Lagos State v. Chief Emeka Odumegwu Ojukwu (supra), Regd. Trustees Apostolic Church v. Olowoleni (supra), & Bedding Holdings Ltd. v. N.E.C. (supra). It must be repeated, no one (including Government) is entitled to take the law into his own hands. The learned trial Judge was therefore right to have made the injunctive orders granted.”

“I think NBA in this case was in a fatal error rooted in self-help to have rectified the suspension being challenged in court. Court processes may be slow, but as professional association we have a duty to show example.”

CONCLUSION

As the NBA National Executive Council (NBA-NEC) meets tomorrow in Jos, all eyes are on the NBA leadership and especially NEC Members to see how the SPIDEL debacle will be tackled. For an association whose motto is “Promoting the rule of law,” stakeholders are watching to see if NBA leadership and NEC will turn a blind eye to the lawsuits and court order or do otherwise. Also, where are the NBA Trustees in all this? Will they provide overall guidance and leadership? Only time will tell.

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